WASHINGTON -- Rare conservative adulation of the U.S. Supreme Court for ending the Florida recount ought to be modulated. Two Reagan-appointed justices -- Sandra Day O'Connor and Anthony Kennedy -- did not contribute to the legitimacy of George W. Bush's presidency. Their performance should influence critically important appointments to the high court by president-elect Bush.
O'Connor and Kennedy are the two swing justices on the ideologically divided high court, swinging back and forth in frequent 5 to 4 majorities. In the Florida voting case, these two Republican jurists ended up electing a Republican president. But they sought to associate themselves with a broader majority on the court, with unintentional consequences.
This should educate Bush, who could fill three or four vacancies and perhaps name a new chief justice. A month before his inauguration, he is being urged not to spurn ideologues but select pragmatists (like O'Connor and Kennedy) or risk rejection by the 50-50 Senate. Thus, what ideologues and pragmatists did about the Florida case ought to influence the president-elect.
One well-connected conservative lawyer described O'Connor, after nearly 20 years on the court, as "what she always has been and always will be: the Republican floor leader of the Arizona Senate" -- that is, a flexible politician. This court-watcher is tougher on Kennedy, viewing him as an ambitious middleweight overly eager to please. He is not the intellectually superior and ideologically principled conservative expected when Ronald Reagan tapped him in 1988.
O'Connor and Kennedy faced a personal problem in the Florida case. They wanted to reject the activist Florida Supreme Court's rewriting of the state's election laws. The cleanest way would be to join the court's three-member conservative bloc headed by Chief Justice William Rehnquist, who found the state court violated Article II of the U.S. Constitution: "each state shall appoint in such Manner as the Legislature thereof, may direct a number of (presidential) Electors."
But the court's four liberals, able to discover invisible writing in the Constitution about abortion and school prayer, could not understand clear language about presidential electors. O'Connor and Kennedy did not relish being in a right-wing ghetto and sought broader agreement.
Constitutional equal protection, adopted in the 14th Amendment to protect freed slaves, was stretched to void a Florida vote recount on grounds of varying standards. Liberal Justices David Souter and Stephen Breyer were willing to buy that -- but only a little bit.
All the swingers got was one weak sentence: "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy." But Souter and Breyer claimed the recount could proceed while O'Connor and Kennedy insisted there was not enough time.
So, after all, the swinging justices ended up in a narrow 5 to 4 conservative majority. But using the equal protection argument can be cited in the future for more of the judicial intervention that conservatives deplore.
What became Rehnquist's concurring opinion (joined by Justices Antonin Scalia and Clarence Thomas) reversed the Florida court on constitutional grounds with this simple argument: "To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II." As the court's ruling, it would have been a bulwark against judicial activism.
Justice Kennedy's recent swing to the right led court-watchers to conclude that he was readying himself for a chief justice vacancy in a Republican administration. He would fit the wishy-washy mode being urged on Bush. Justice Scalia, who would be a decisive and principled chief justice, has been demonized along with such conservatives as Newt Gingrich, Ken Starr, Jesse Helms, Tom DeLay and many more.
The president-elect surely will seek advice from Vice President-elect Cheney. In 1975, as the newly minted White House chief of staff, 34-year-old Dick Cheney concurred in the selection of Judge John Paul Stevens to the Supreme Court. President Gerald Ford rejected Solicitor General Robert Bork and chose Stevens as a non-entity sure to win rapid Senate confirmation. Twenty-five years later, Stevens is the leader of the court's liberal interventionist bloc.