Naming Two Justices Could Provide Political Balance The potential of filling two vacancies on the Supreme Court would give President Bush a chance to find a much-needed balance and prevent political turmoil, Ron Elving says in the latest Watching Washington column.
NPR logo Naming Two Justices Could Provide Political Balance

Naming Two Justices Could Provide Political Balance

Until the late 1970s, no American president served a full four-year term without appointing a Supreme Court justice. Since then, three presidents have done so. The first was Jimmy Carter, who left office without getting to name a justice. Bill Clinton got to pick two in his first term but none in his second. And George W. Bush served his first term without a vacancy.

Openings on the high court occur less often now, in part because seats on the court are perceived as more precious and powerful than ever. Today it is hard to imagine a justice leaving to be ambassador to the United Nations (as Arthur Goldberg did in 1965) or even to enjoy a normal retirement.

It is just as hard to imagine William Howard Taft making six Supreme Court appointments in a single White House term, or Richard M. Nixon filling four vacancies from 1969 through 1971. The current group of nine justices has been intact for 11 years, the longest period without a change since the size of the court was fixed at nine in 1869.

So if a president nowadays has to be lucky to pick a justice, Mr. Bush is about to be very lucky indeed. He will name the successor to Sandra Day O'Connor, and probably to Chief Justice William H. Rehnquist as well. And over the next few years he could get lucky again.

O'Connor's retirement after 24 years on the Court was a mild surprise in part because all eyes had been on Rehnquist. The chief justice received a tracheotomy as part of his treatment for throat cancer last winter and was widely expected to resign.

Rehnquist may have decided not to retire, at least for the moment, in hopes that he can serve at least some of another term. He is 80, but he is neither the oldest justice on the current Court (John Paul Stevens is 85) nor the oldest chief justice ever (Roger Taney held the job until he died at 87). Rehnquist, a widower, may prefer to go the same route, having nothing else he wants to do more.

From President Bush's point of view, however, a Rehnquist retirement this summer would have one distinct advantage. It would enable him to finesse the political dilemma posed by the single vacancy.

Filling just one seat promises to provoke a fight, either with the already restive Senate Democrats or with those on the right who want only a certain kind of conservative to succeed O'Connor. But if this president could fill two at once, he might easily fashion a package deal that would be harder for either side to resist. Public opinion would almost surely side with the president and the concept of balance.

This kind of built-in counterweight was a boon to President Richard M. Nixon the last time two seats were open at once. Justices John Marshall Harlan and Hugo Black both resigned in September of 1971. Nixon appointed Rehnquist and Lewis F. Powell Jr., respectively, to replace them.

Rehnquist was an aggressive conservative associated with the Arizona conservatism of Barry Goldwater. Powell was a Virginian known as a consensus builder, attractive in both respects to the Democratic majority in the Senate.

Powell won confirmation easily and with it some good will for Nixon, whose thornier nominee, Rehnquist, got through despite 33 negative votes (a high number for a successful nominee).

President Bush might not have the luxury of retirements so close together that he can name both replacements the same day (as Nixon did). But he knows now what he can expect, and he can act accordingly.

A balanced ticket for the high court in contemporary America might look like this: A Hispanic justice with respectable conservative credentials and a more doctrinaire conservative focused on social issues.

The former nominee would meet resistance from hardliners in both parties, but those in the middle would almost surely be welcoming. The more deep-dyed conservative nominee would still have fanatical backers and adversaries, to be sure. But the "all-or- nothing" fury now being by ginned up by partisans on both sides would seem misguided and out of proportion.

Such an approach would acknowledge the political realities of the president's re-election and the preferences of his strongest supporters. But it would also reflect the closeness of that re-election and the divisions within the nation. It would respect both the Republican majority in the Senate and the minority rights implicit in the Senate's rules and traditions.

Such an approach would also promise to strengthen the court itself, the public perception of the Bush presidency and the general health of the body politic.