Bush's Next Supreme Court Choice Tricky Weakened politically by Iraq and Hurricane Katrina, President Bush must be even more careful in choosing his next Supreme Court nominee, Ron Elving says in the latest Pennsylvania Avenue column.
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Bush's Next Supreme Court Choice Tricky

Assuming the hurricane season has finally peaked, President Bush can turn his full attention to making the biggest decision of his second term so far: his choice of a successor to Sandra Day O'Connor on the Supreme Court.

Mr. Bush chose wisely in selecting John Roberts, but this new challenge would be a test for Solomon himself. O'Connor's vote was the pivot on which the majority turned, not just once in a while but on dozens of landmark 5-4 rulings, including the one that made Mr. Bush president in December 2000.

Her successor could well tip the court toward its conservative end, now anchored by Justices Antonin Scalia and Clarence Thomas. That is the outcome most fervently desired by the Senate's activists of the right, and the one most feared by its activists of the left.

These two factions, spoiling for a fight, had assumed in the summer their brawl would come with the confirmation hearings and Senate floor debate over Roberts. But when the president shifted Roberts into the center chair left vacant by the death of Chief Justice William H. Rehnquist, he subbed a conservative for a conservative. That sidestepped the special question posed by the O'Connor succession.

The donnybrook was delayed, but not denied. In fact, the longer the wait to resolve the O'Connor succession the more frayed nerves become. Roberts proved such a nimble target in his confirmation hearings that neither conservatives nor liberals could get a bead on him. Neither side feels quite certain now what Roberts will do, so both sides are more determined than ever to set their sights on the next nominee.

That signal was sent at the hearings and kept resounding this week in the floor debate leading up to Roberts' confirmation by the Senate (a foregone conclusion with 75 votes or more). And it's not just the Democrats warning the president not to pick an ideologue (meaning someone capable of voting to end the abortion right in Roe v. Wade).

Conservative senators, too, have heard Roberts called "a conservative without an agenda."

With his next pick, they want their president to choose a conservative who not only has an agenda but who is willing to own it in public.

Sen. Sam Brownback of Kansas, a social conservative with national ambitions of his own, has said the new justice should be "solid and known" on abortion, same-sex marriage, school prayer and other issues of religion in the public sphere.

Mr. Bush vowed to appoint judges with just such ideas in his presidential campaigns of 2000 and 2004, as Brownback likes to remind him. And if the new Supreme Court is to be moved in a notably new and different direction — as this president promised — it will take a forthright and committed conservative to do it. The popularity of this view on the right is limiting the president's range of options.

Not long ago, Mr. Bush had hoped to name his close associate Alberto Gonzales to the court. The president has already relied on Gonzales as his in-house counsel as governor and as president, and he has appointed him to the Texas Supreme Court as well as to his current job as U.S. Attorney General.

Such a choice would be in keeping with the president's plans to make the GOP more appealing to Hispanics. The president was said to be delighted with the idea of appointing the first Hispanic chief justice. By inaugurating the era of "The Gonzales Court," he would demonstrate a Republican empathy with the aspirations of tens of millions of Spanish-speaking Americans.

Gonzales would also be difficult for Democrats to oppose, for his bootstrap success and demographic identity and for his relatively moderate views. Gonzales has smiled on affirmative action programs from the bench and been somewhat ambiguous on abortion.

The problem is that, given those views, Gonzales generates resistance on the right. Several significant conservative individuals and organizations have told the president they simply could not support him and would be terribly disappointed by his appointment.

Still, there was a moment a few months ago when doing this looked not only possible but practical for the president. When O'Connor announced her plans to step down in the early summer, Washington was already awash in rumors about Rehnquist retiring. Some conservative commentators, perhaps too eager to create a second vacancy for Mr. Bush to fill, openly predicted the day and even the hour of Rehnquist's resignation.

The 80-year-old veteran of 33 years on the high court was having none of it, however, and he snapped at a TV reporter who asked when he would announce his plans. He wanted to see if his health would permit him to begin one more term. It did not. But by holding on as he did, the chief had an impact on the political life of the nation one more time.

With just one seat to fill rather than two, President Bush was not able to put together the package deal by which Gonzales might have won confirmation in tandem with Roberts (or perhaps a more explicit hero of movement conservatives). Richard Nixon used a similar strategy in 1971, appointing Rehnquist along with Lewis F. Powell and winning confirmation for both.

It was a moment when the Senate was ripe for just such a compromise. Seven Republicans and seven Democrats had just made a bipartisan deal to avoid filibusters — or any extraordinary procedural efforts to end filibusters — on judicial appointments. A spirit of cooperation was still fresh in the chamber. And Mr. Bush himself was still hovering around a 50-50 split in public opinion polls about his job performance.

Then came July and August, two months of brutal news from Iraq and discouraging news about energy prices. Cindy Sheehan helped energize the anti-war movement by deviling Mr. Bush's vacation. And over the course of the summer, the president's job approval numbers fell steadily to match the lowest level he has seen in his presidency. Hurricane Katrina followed, with the debacle of the government response at all levels. The stunning disconnection between the White House and the crisis dealt the president the worst blow his public image has suffered.

All this means Mr. Bush can no longer think in terms of choosing whom he pleases. He must consider the calculus of the Senate.

The relative weakness of his position argues in favor of a consensus nominee who can win over Democratic votes and prevent a filibuster. Above all, he should avoid anyone who might unify in opposition the Democrats and Republicans who favor abortion rights.

At the same time, he can scarcely defy the will of social conservatives. These senators and their supporters are the essence of Mr. Bush's electoral base, and keeping them happy has been the lodestar of his political life.

Hovering around 40 percent approval in the polls, Mr. Bush can choose to court the middle-ground voters who have been deserting him or stick with those who have stood by him. Given the general political outlook of this president and his key advisers, the smart money right now would expect him to play to his base.