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.
Beyond the constitutional implications of Bush's new pick, Bush must also think politically. When Bush nominated Roberts, he must have thought he'd score quick political points. Because Roberts was such an unknown, however, only the radical left truly opposed his nomination. The right was left with no one to fight. The base was not galvanized. The left was not weakened, because it felt no need to obstruct. And Bush gained nothing.
Now, with his presidency under grave assault by both the anti-war cadre and the newly formed "Bush the Racist caused the hurricane" crowd, Bush must pick a political fight. For far too long, he has avoided the political battleground in favor of defensive positioning. Now he can reverse course. Let's see the Democrats filibuster a well-qualified originalist. Let's see them try to obstruct the nomination of a brilliant judicial practitioner.
And let's see them attempt to block a minority. The Democrats have gotten off easy with the Roberts nomination. Even if the Democrats had decided to oppose Roberts' nomination, there's little political consequence for attacking an upper class white guy. He’s a no-name, so they can sit back and safely claim that even if he turns out to be another Thomas, they couldn’t have known it from his record. Even if Democrats did decide to oppose the Roberts nomination on a large-scale basis, there’s often little harm in going after an upper class white guy.
Going after the first Hispanic nominated to the Supreme Court would be another matter entirely. Let's watch Robert Byrd twist in the wind as he cites Cicero to justify his opposition to a conservative Hispanic. Let's see Barbara Boxer rip a Hispanic nominee while attempting to court the Hispanic population of Southern California. Hillary Clinton will be too smart to try to stop this one.
Bush can have it all: The right man for the job (and a brilliant one) is Judge Emilio Garza (58) of the Fifth Circuit Court of Appeals. Here's Garza on the worst Supreme Court decision of the last century, Roe v. Wade: "Two essential facts seem apparent: The Constitution says absolutely nothing about abortion and ... the long-standing traditions of American society have permitted abortion to be legally proscribed … Because the decision to permit or proscribe abortion is a political choice, I would allow the people of the state of Louisiana to decide this issue for themselves." Excellent. Roe v. Wade is indeed a litmus test, but it is a judicial, not a political litmus test. Any judge who would uphold Roe believes not in the Constitution, but in the naked power of Supreme Court doctrine. Still, it takes guts to write such a thing while sitting on the federal bench.
Of course, there are many other candidates who are attractive as well: Judge Michael Luttig (Fourth Circuit), Judge Janice Rogers Brown (D.C. Circuit), Judge Samuel Alito (Third Circuit), and Miguel Estrada. Any of these would fulfill Bush's campaign promises to restore the constitutional role of the Court. President Bush has always been a man unafraid to go the whole nine yards. Let’'s hope he goes for it here.