Consultation. Conciliation. Compromise. Such concepts are in eclipse these days in Washington. Everyone is getting ready for the mother of all confirmation battles. As soon as one of the nine aging Supreme Court justices retires, sports fans expect, President Bush will pick a clone of Antonin Scalia or Clarence Thomas. Liberal groups will "Bork" the nominee as a retrograde, right-wing judicial activist bent on forcing women into back-alley abortions, pushing gays back into the closet, resegregating higher education, imposing a fundamentalist Christian theocracy, and promiscuously paving the habitats of endangered species. And then there will be all of the oppo dirt-digging for ethical lapses, libidinous excesses, and other embarrassments.
Senate Democrats will filibuster. Republicans will invoke the "nuclear option," with Senate President Dick Cheney ruling from the chair that filibustering nominees is unconstitutional; a party-line vote will then ram his ruling home. The Senate's defining feature—protection of minority rights—will be in ruins. The nominee will be confirmed. But Democrats will thereafter roll out an arsenal of parliamentary techniques to bring the business of the Senate to a screeching halt. Bush's hopes for Social Security reform will be dead. Tax reform and tort reform—dead. It will be total war—nasty, brutish, and long.
Some seem to relish the prospect. A Wall Street Journal editorial, for example, arguing that a fight over Supreme Court nominees "is inevitable no matter what," pushes a list that includes one candidate who has publicly suggested that Roe v. Wade be overruled, and another who has tarred as "the triumph of our socialist revolution" the Court's decisions upholding major New Deal programs almost 70 years ago. If Democrats defeat one nominee, the editorial adds, "Send up another, and another after that." And if William Rehnquist retires early: "We'd recommend a recess appointment."
I'd recommend that the president and Senate Democrats try a little statesmanship. They should consult with one another, chuck their most combative supporters under the chin, and compromise on candidates conservative enough to honor the president's campaign pledges but not so radical as to scare reasonable Democrats.
Meeting those criteria won't be easy. But if each side combines a modicum of restraint with an understanding of the other side's political imperatives, it could be done.
Suppose, for example, that Rehnquist, the ailing, 80-year-old chief justice, decides to retire in the coming weeks or months. Bush should bow to the Constitution's mandate of advice and consent by inviting Senate Democrats to meet with him or his aides to discuss possible nominees. Nobody would expect him to follow the Democrats' advice, unless they have damaging information of which the White House is unaware. But flattery never hurts. Consultation looks good. And Bush would have nothing to lose but some of his arrogance.
The key decision for Bush would be whether to pick an archconservative nominee (or nominees) who would delight his conservative base—and be a stick in the Democrats' eye—or someone a notch closer to the center. Nobody would delight Bush's base more than Judge J. Michael Luttig of the U.S. Court of Appeals for the 4th Circuit. Luttig is a brainy conservative whose powerfully reasoned opinions have convinced many conservative and liberal activists alike that he would push the law hard to the right. This perception—even if wrong—would send liberals to the barricades. The same reaction could unfold were Bush to nominate Thomas or Scalia to be chief justice.
Given the 55-vote Republican majority in the Senate, Bush could be pretty confident of getting just about any presentable nominee confirmed to replace Rehnquist. Because the chief justice is allied with Scalia and Thomas on most big issues, opponents could not plausibly claim that the court's balance would change much. And for all the symbolic importance of the position, the chief justice has only one vote, and not that much more power than any of his eight colleagues. Wiser heads among the Democrats would know better than to put their ultimate weapon, the filibuster, at risk in what would probably be a losing battle.
So Bush would likely win any battle over replacing Rehnquist. But if he forced a provocative conservative down Democrats' throats, it might prove to be a Pyrrhic victory in terms of its effect on Bush's congressional agenda. And for what gain? To energize a political base that will never cast another vote for him? To increase the odds that conservatives will have an edge on complex jurisprudential issues about which (in most cases) Bush cares little and knows less?
The truth is that nobody can predict with any confidence what would be the differences in Supreme Court voting patterns between a Luttig and a less provocative, seemingly more moderate conservative such as his 4th Circuit colleague J. Harvie Wilkinson III. Or such as Judge John G. Roberts Jr., of the U.S. Court of Appeals for the District of Columbia Circuit. Or such as former Deputy Attorney General Larry D. Thompson. It's especially hard to tell to what extent any of the prospects who appear to be on Bush's short list, once confirmed, would defer to the Supreme Court's own precedents. Lower-court judges have to defer to Supreme Court precedents. For the justices, it's voluntary.
So the best way for Bush to keep his legislative agenda alive while filling a Rehnquist vacancy would be to pick a mainstream conservative such as Wilkinson, Roberts, or Thompson. This assumes that Senate Democrats understand that they cannot realistically expect Bush to move the Court to the left by replacing Rehnquist with a centrist, let alone a liberal. It would violate the spirit of Bush's campaign pledge to name "strict constructionists" who will not legislate from the bench.
In this context, a move by Bush to consult Senate Democrats before making a nomination could serve a purpose that's more than just ceremonial. "Listen," Bush could tell them, "I hear that some Democrats are saying they will attack any conservative I nominate, even if I do my best to choose someone acceptable to reasonable Democrats. If you are going to attack anyway, there's no percentage in trying to accommodate you. I might as well pick someone you hate. And you know what would happen then: You would get huge pressure from your liberal groups to filibuster. If you do, we will go nuclear. And we will win. You will end up with my nominee on the court, with the filibuster rule destroyed, and with your power—and mine—to get anything done diminished. I don't want that. And I can't believe you do. So let's make a deal. I will pick a nominee you should find acceptable, if you will promise not to fight him."
The temptation of both sides to go to war will be at its maximum if one of the more liberal justices, such as 84-year-old John Paul Stevens, steps down. That would raise the specter of a sudden shift to the right in the court's precarious ideological balance. The 5-4 majority that in 2003 upheld racial preferences in university admissions could become a 5-4 majority to strike down such preferences; the majority favoring Roe v. Wade could go from 6-3 to 5-4; any hope of the justices' legalizing gay marriage could be dead; and much more.
If Bush chose an archconservative to replace Stevens, it would amount to a declaration of war against Senate Democrats. They would respond with rhetorical carpet-bombing, multimillion-dollar ad campaigns, a frenzy of dirt-digging, and—if all else failed—a filibuster. Bush might be able to smash it. But in the process, he would be smashing any hope of bipartisan cooperation on anything.
And if Bush pushed the dwindling band of moderate Northeastern Republicans too hard, it could backfire, big-time. They are not keen on blowing up the Senate to pack the court with archconservatives. And at some point, they might bolt the party. That 55-vote Republican majority would then shrink. And if the public came to fear that Bush was making the country too conservative, Republicans could feel a backlash at the polls—and the party's majority might disappear entirely.
So if one or two of the more liberal justices retires, Bush would be wise to look to the more moderate conservatives on his short list. He will get the first move and will set the tone. He could do worse than to recall the words of Rodney King: "Can't we all just get along? ... I mean, we're all stuck here for a while. Let's try to work it out."