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Moderate or bust for Bush

July 17, 2005 1:06 am

J USTICE SANDRA Day O'Connor is the first to push what may become a revolving door at the U.S. Supreme Court in the coming months. President Bush's choice to be her successor will set the tone for what is expected to be a series of contentious confirmation procedures.

Many people expected Chief Justice William H. Rehnquist would step down first because of his health. But he kept pace with the court's case load despite undergoing treatment for thyroid cancer, and his anticipated announcement at the session's end never came.

The independent O'Connor was not about to let the threat of a double vacancy prevent her from leaving to spend time with her ailing husband. But O'Connor's decision may keep Rehnquist on the bench awhile longer.

There's ongoing speculation about the tenure of Justice John Paul Stevens, who is 85 and has served on the court for nearly 30 years.

After O'Connor, then, President Bush seems certain to have at least one more Supreme Court appointment before the 2008 election, if not two. The court's philosophical direction hangs in the balance with each seat.

Perhaps President Bush should take his cue from another president who appointed three justices, Ronald Reagan. Of course, it is a different political era. There was also a Republican Senate majority at that time, and tax cuts were a constant topic, but the conservatism seemed more tied to traditional values in a nostalgic sense rather than to today's rigid, pro-life, Bible-belt fundamentalism.

In any event, Reagan was able to shepherd through his first two nominees, O'Connor and Antonin Scalia, with little resistance. And after two false starts at filling his third vacancy (recall Robert Bork and David Ginsberg?), Reagan went with Anthony Kennedy, who sailed through confirmation.

Even Bush supporters have to agree that he sorely lacks President Reagan's public charisma. But like Reagan, Bush would do well to nominate a woman, perhaps one who, like O'Connor, has the resume of a moderate conservative but can't be pigeonholed on the right or left.

With the smooth confirmation of O'Connor in September 1981, Reagan was positioning himself above the ideological fray. At 70 years old, he had survived an assassin's bullet just six months earlier, for heaven's sake. He was not only the nation's president, he was its wounded hero granddad.

Five years later, when Chief Justice Warren Burger announced his retirement, Reagan chose to move Justice William H. Rehnquist up, and to nominate Scalia as the associate justice to replace him.

History suggests that even though Republicans still owned the Senate, the ultra-conservative Scalia cleared confirmation without a fight largely because so much attention was focused on Rehnquist's promotion. We know now that Rehnquist is a relative moderate compared to Scalia.

Reagan's third opportunity came when Justice Lewis F. Powell Jr. resigned in June 1987. In the eight months between the ill-fated nomination of Bork, and Kennedy's confirmation in February 1988, the fallout from the Iran-Contra scandal took hold, and the Republicans were swept out of the Senate, trading their six-seat majority for a 10-seat minority in the 1986 mid-term elections.

Kennedy was not a conservative zealot, but was Reagan's loyal and trusted friend--not unlike what Attorney General Alberto Gonzales is to Bush. As a moderate, Kennedy was a crowd-pleaser, which is what Bush needs. Gonzales, on the other hand, seems to antagonize almost everyone. Kennedy often has voted with the court's conservative bloc, but has been on both sides of the abortion issue.

President Bush doesn't like to discuss these thoughts about Supreme Court nominees except to say that he favors a "strict constructionist," which has become a euphemism for an anti-abortion view because there is no mention of abortion rights per se in the Constitution.

Nor is there any mention in the Constitution of property rights on the moon, or exploitation of the Internet, because the founding fathers had no reason to consider such issues.

The president is said to be more concerned about whether his nominees would be effective in dispensing justice, than about their positions on abortion and other hot-button issues.

But while the president may insist he has no nominee "litmus test" on abortion, gay rights, or affirmative action, senators and their constituents do. He would do well not to choose someone with a record that says "ideological lightning rod."

When the time comes to replace Rehnquist, Bush will need to decide whether to nominate a new chief justice, or to follow Reagan's example and move a current justice up.

Bush has said he highly admires Justices Scalia and Clarence Thomas, the two most conservative members of the court. Both have voted to overturn the Roe v. Wade decision that legalized abortion, punt racial affirmative action, and allow almost any government aid to religious schools.

If he appointed one or the other chief justice, the predictable political battle could draw attention away from whomever he nominates as a replacement. He would be better off diverging from the Reagan parallel and looking outside the court to find a new chief who is a consensus builder.

The president should remember that his right-wing supporters represent only a fraction of his constituency. He says he wants to represent all Americans, and this is his opportunity to prove it.

President Bush could stabilize Iraq, tame the federal deficit, and even become a great orator, but if he bows to the right on his Supreme Court nominees, his legacy will be one of political cowardice.

RICHARD AMRHINE is a writer and editor with The Free Lance-Star.





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