WASHINGTON -- Conservatives who have spent more than a decade planning for this moment to change the balance of power on the Supreme Court are reeling from blows delivered by two dissimilar political leaders: Edward M. Kennedy and George W. Bush. Sen. Kennedy has succeeded with the news media in establishing a new standard of "mainstream conservatism" for a justice. President Bush has put forth "friendship" as a qualification for being named to the high court.
Bush is by far the bigger obstacle in the way of a conservative court. While Kennedy's ploy presents a temporary problem, Bush's stance could be fatal. The Right's morale was devastated by the president's comments in a USA Today telephone interview published on the newspaper's front page Tuesday: "Al Gonzales is a great friend of mine. When a friend gets attacked, I don't like it." Bush is a stubborn man, who sounded like he might really nominate Attorney General Alberto Gonzales in the face of deep and broad opposition from the president's own political base.
Adding to the tension is word from court sources that ailing Chief Justice William Rehnquist will also announce his retirement before the week is over. That would enable Bush to play this game: name one justice no less conservative than Rehnquist; and name Gonzales, whose past record suggests he would replicate retiring Justice Sandra Day O'Connor on abortion and possibly other social issues. Thus, the present ideological orientation of the court would be unchanged, which would suit the Left just fine.
Kennedy and his allies were taken by surprise last Friday when O'Connor declared she was leaving. Democrats had expected Rehnquist to go first. Since Rehnquist's replacement by a conservative would not change the court's balance, Kennedy could keep his filibuster gun in the closet for now. O'Connor's bombshell raised the possibility of a conservative switch on the court, and Kennedy reacted to the new climate quickly.