With the death of Chief Justice William Rehnquist, President Bush has another Supreme Court seat to fill. In deciding to elevate Judge John Roberts to the highest judicial position in the land, Bush no doubt believes he is substituting a second Rehnquist to fill the first's slot. But the more important question at this point is who Bush will pick to fill Sandra Day O'Connor's now-vacant post.
This is a moment of truth for the president. The Roberts pick was a safe pick –-- Roberts is a Rehnquist protégé, a politically conservative judicial minimalist. He is not an originalist. This means that while Roberts may rule correctly much of the time (after all, there is more danger nowadays in judicial usurpation than in judicial inaction), it will often be for the wrong reasons.
So President Bush already has his Rehnquist. What he needs now is another Clarence Thomas. He needs an ardent originalist, someone who believes that the Constitution does not magically change over time. He needs someone who believes that the historical Constitution takes precedence over any personal political preference. And yes, he needs a minority.
Politically speaking, President Bush could use a masterstroke. He needs to choose someone who will appeal to his base, while demonstrating that originalism isn't the exclusive philosophical territory of white judges. Clarence Thomas has been the best justice on the Supreme Court since his appointment; his consistency has been greater even than that of Antonin Scalia. If President Bush could find someone to mirror Thomas, he would energize the base, reach out to new voters, and strengthen the court -- all at the same time.
Of course, strengthening the court is the chief task here. Even with another Thomas, the Court remains the dominion of a liberal majority. Only by appointing a young, steady mind can Bush hope to take back the Court in the future. Chances remain decent that either John Paul Stevens (85) or Ruth Bader Ginsburg (72, and reportedly in ill health) will step down during the next three years. Should Bush fail to choose an originalist firebrand, Americans could feel the consequences for the next thirty years.
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