The nation’s capital experienced a rare event Friday, and not the one everyone expected. For the first time in 11 years, there was a Supreme Court vacancy and the justice stepping down was not, as widely expected, the ailing chief, William Rehnquist, but the swing vote, Sandra Day O’Connor.
Justice O’Connor may not immediately get her desired retirement. She is pledged to stay on the high court until her successor is confirmed, but it will take almost a flawless meshing of the political and legislative machinery to have her replacement on the court when it reconvenes in October.
The most workable choice would be to replace a Sandra Day O’Connor, aptly described as a “moderate conservative,” with a Sandra Day O’Connor type. Whatever one thinks of “judicial activism” versus “strict constructionism” — both terms tending to be in the eye of the beholder — Americans greatly favor incremental over radical change in their institutions. The great national decisions are thrashed out in the middle where Jutice O’Connor so often herself was the fifth “5” in a 5-4 vote.
President Bush says he will not choose a replacement until after he returns from Europe July 8. Although he was said to have been surprised by the retirement, he was not unprepared. The president has been carrying around a short list of nominees against just such an eventuality.
Senate hearings would likely begin four to six weeks after receiving the nomination and last a week or more. Given the Senate’s packed calendar, this is already crowding the October deadline — and that’s without a Democratic filibuster.
Mr. Bush could name Solomon himself to the court, and there would still be a controversy. Interest groups both left and right have raised money and fired up their true believers to block or advance whomever he names. The battle outside the Senate could well be more ferocious than the battle inside.
While it may pain the president to do so, he should take accept the Democrats’ offer to talk about a nomination. It can’t hurt, it might help, and in either case he has nothing to lose.
A bloody, divisive fight in the Senate with a filibuster and the nuclear option may be unavoidable, but it’s worth a try if only because the nasty consequences would last far beyond the actual nomination.
White House Press Secretary Scott McClellan says Mr. Bush will “appoint someone of high intellect and great legal ability and someone with good judgment.” That seems a promising start.
Dale McFeatters is a columnist for Scripps Howard News Service.
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