Spoiling for a Fight

Fights over the Supreme Court are most intense when ideological balance is at stake.

Not many Americans have heard of William Myers III, Janice Rogers Brown, William Pryor Jr., or Priscilla Owen. But all of this talk about ending filibusters against judicial nominees and "going nuclear" is supposed to be about these men and women and three other federal appeals court nominees whom President Bush has picked and whose confirmation Senate Democrats have been trying to block.

But the nominees are not what the huge political fight in Washington is really about. John Dean, President Nixon's White House counsel, has seen his share of political fights. In his view, Bush is ready for another one. "The fact that he is renominating judges who have been rejected indicates he's in a scrappy mood and is prepared to fight," Dean told CNN.

Chris Bartolomucci, Bush's former associate White House counsel, notes the Democrats are fired up, too: "It appears that Senate Democrats and the interest groups who are their allies have been spoiling for a fight." He adds, "There is every reason to expect that we would get such a fight for a Supreme Court nominee."

If ailing Chief Justice William Rehnquist announces his retirement this summer, Bush will nominate a new chief justice. He could decide to elevate one of the current justices, but Senate confirmation would still be required. Bartolomucci cautioned, "When you elevate someone—let's say a Justice [Clarence] Thomas or a Justice [Antonin] Scalia—you guarantee a bitter confirmation battle, and you don't add a new vote" to the Court until someone is confirmed to the vacant seat.

Court-watchers predict that Scalia would probably be confirmed if Bush were to tap him for chief justice. Whether the Senate would agree to elevate Thomas is harder to predict. Does anyone really want to relive the intensely personal battle over Anita Hill's charges that Thomas sexually harassed her? Senate Minority Leader Harry Reid, D-Nev., has called Thomas "an embarrassment to the Supreme Court," while describing Scalia as "one smart guy." Reid added, however, "I disagree with many of the results that [Scalia] arrives at."

A fight would also likely ensue over Bush's nominee to replace any associate justice elevated to chief justice. Nominating another conservative to Scalia's or Thomas's old seat might not provoke a bitter battle, however, because a new conservative justice would not change the Court's ideological makeup. In 1986, when President Reagan elevated Rehnquist to chief justice, the president named another conservative, Scalia, to fill Rehnquist's seat. The Senate confirmed Scalia, 98-0.

Supreme Court nominations can trigger nasty confrontations. Conservatives have not forgotten the bitter fight over Robert Bork, whom the Senate rejected in 1987. The debate was over his views. "Time and again, in his public record over more than a quarter-century," Sen. Edward Kennedy, D-Mass., said, "Robert Bork has shown that he is hostile to the rule of law and the role of the courts in protecting individual liberty."

For their part, liberals have not forgotten the bitter 1991 fight over Thomas. "I will not provide the rope for my own lynching or for further humiliation," Thomas declared at his confirmation hearing. He went on to win confirmation, of course.

Those fights were intense not just because of who Bork and Thomas were, but because of whom they were nominated to replace. Reagan named Bork to succeed Justice Lewis Powell Jr., who had been the Court's swing vote. President George H.W. Bush nominated Thomas to replace Justice Thurgood Marshall, a reliably liberal vote. The ideological balance of the Court was at stake in both battles.

In 1990, the nomination of David Souter by the first President Bush to replace liberal Justice William Brennan produced no all-out battle, because Souter's views were largely unknown. Souter has turned out to be a disappointment to conservatives. And the Souter experience puts the current president in a bind. The liberal rallying cry is, "No more Clarence Thomases"—that is, judicial nominees known to harbor hard-line conservative views. The conservative rallying cry is, "No more David Souters"—that is, ones without established conservative credentials.

President Clinton's Supreme Court nominees, Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994, didn't trigger big showdowns. Ginsburg replaced Byron White, a moderate appointed by President Kennedy. Breyer replaced Harry Blackmun, a Nixon appointee who wrote the Roe v. Wade abortion-rights decision. Neither Clinton nomination tipped the ideological balance of the Court.

For President George W. Bush, the real fight will come if and when he is faced with the retirement of a moderate justice—for example, Sandra Day O'Connor, the current swing vote, or John Paul Stevens. "If Stevens retires," Bartolomucci said, "there could be a greater opposition to a conservative nominee because he would be seen as replacing a moderate conservative—whereas, if the chief justice retires, you can say that one conservative is being replaced by another."

With so many 5-4 Supreme Court decisions—including Bush v. Gore in 2000—one new vote could shift the Court's ideological balance and change the direction of the country.