Supreme Court politics

Posted: Jul 07, 2005 12:00 AM

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.

 "Justice O'Connor was a mainstream conservative," Kennedy said within hours of her announcement. "I hope the president will select someone . . . that can bring the nation together as she did." Kennedy's description of O'Connor as a "conservative" was echoed by Democratic Sens. Patrick Leahy, Chris Dodd, Charles Schumer and Dianne Feinstein -- who will lead any filibuster against O'Connor's successor. O'Connor was not considered a conservative when nominated 24 years ago, and the worst fears about her were realized by her consistently liberal positions on social issues. With Democrats now setting a new standard for conservatism, Republican senators could only bite their lips and praise her.

 Gonzales would not exactly be another O'Connor, but he is still considered a disaster by Republican conservatives. He also is the best Democrats can hope for. The 35 Democratic senators who voted against Gonzales's confirmation as attorney general will not have to turn around to provide enough support to place him on the Supreme Court, because he can be confirmed without their votes.

 Gonzales trial balloons were shot down on the Right, but that has not stopped leaks from the White House. If a Rehnquist vacancy now is thrown into the mix, will Bush be tempted to temporize by naming one conservative and one non-conservative? If he nominates conservative Justice Antonin Scalia as chief justice and thus creates a third confirmation, will he think he has escaped by saying he has named two conservatives? No such maneuvers will make Gonzales acceptable to the Bush base.

 Consequently, Bush's USA Today interview has been a source of intense anxiety on the Right. Typically, the president did not defend Gonzales on his merits but with outrage that anybody would dare criticize his friend. That reflects a general schoolboy attitude that is losing the president support from fellow Republicans and conservatives.

 The Founding Fathers put the Senate "advise and consent" clause into the Constitution partly to combat cronyism. In Federalist No. 76, Alexander Hamilton opposed the president's nominees "being in some way or other personally allied to him." Thus, the wonder in Washington is that a peeved Bush would defend Gonzales's selection on grounds of personal pique. So much is at stake in these Supreme Court nominations that surely the president must realize this situation transcends loyalty to a friend.