A legacy moment for Bush

As the nomination of Judge John Roberts proceeds today to certain confirmation from the Senate Judiciary Committee, it is clear that the ideological balance on the Supreme Court will not change if he proves to be every bit as conservative as William Rehnquist, the staunchly conservative late chief justice whom Judge Roberts would replace. On the other hand, if Judge Roberts proves to be reliably conservative, but marginally less so than the steadfast Justice Rehnquist, then the Supreme Court would actually become relatively more liberal, all other things being equal.

Fortunately, however, everything else is not equal. President Bush has the golden opportunity to nominate a conservative stalwart to replace Justice Sandra Day O’Connor, the demonstrably moderate associate justice who in July announced her decision to retire following the confirmation of her successor.

It is incumbent upon Mr. Bush to use his second nomination to the high court to name an unabashed conservative whose confirmation by the Republican-controlled Senate would guarantee a rightward shift. This is Mr. Bush’s legacy moment, and lifetime appointments offer presidents the opportunity to pursue giant legacies. Richard Nixon’s 1971 nomination of William Rehnquist to be associate justice illustrates the point. More than three decades after Mr. Nixon resigned the presidency, Justice Rehnquist, whom President Reagan elevated to chief justice in 1986, was still casting his vote.

President Bush’s selection of the 50-year-old Judge Roberts was an outstanding start. The president must now build upon his judicial legacy by selecting a comparably youthful associate justice who is every bit as conservative as Ruth Bader Ginsburg (the former general counsel for the American Civil Liberties Union) was liberal when she was named to the Supreme Court. Nominating a very strong conservative to replace the moderate Justice O’Connor would match the relative ideological shift (albeit in a different direction) accomplished by Bill Clinton. In 1993, Mr. Clinton appointed the unabashedly liberal Mrs. Ginsburg to replace Byron White, the John F. Kennedy-appointed centrist who joined Justice Rehnquist in opposition to the landmark Roe v. Wade abortion decision (7-2) in 1973.

Surely, Mr. Bush understands that the opportunity to reshape the Supreme Court, probably more than any other prospect, is what encouraged an unprecedented 1.4 million active volunteers to embrace his 2004 re-election campaign, thereby raising his 2000 vote level by 12 million, or 23 percent, and increasing the Republican Senate majority from 51 members to 55. Now is the time for Mr. Bush and the Republican Senate to use the leverage voters gave them.

If Democrats attempt to use the filibuster to deny a twice-elected president and a significantly expanded Republican Senate from appointing and confirming a conservative to replace Justice O’Connor, then the filibuster-thwarting constitutional option must be deployed.