PRESIDENT BUSH may or may not get the opportunity to name a Supreme Court Justice this summer. But if he does, who would be the right choice? Bush himself has told us. In 1999, Fred Barnes asked Bush what kind of judge he’d select. “I have great respect for Justice Scalia,” he said, “for the strength of his mind, the consistency of his convictions, and the judicial philosophy he defends.” There you have it. Someone like Scalia, assuming all other qualifications are met, would be the best choice for the Court. In fact, we’d drop the word “like” in thinking about who should replace Chief Justice William Rehnquist, were he to step down. In that case, Scalia would be the logical choice, assuming he is willing to take the center seat. And then, of course, Bush could backfill with someone like Scalia. Likewise, if John Paul Stevens or Sandra Day O’Connor–next to Rehnquist, the oldest and longest-serving justices–were to leave the Court, Bush will surely want to select a replacement who shares Scalia’s judicial philosophy.
We commend to Bush his own standard, not simply because he articulated it but because the Court needs more judges like Scalia. On race, religion, criminal justice, and national power, the Rehnquist Court is an improvement on the Burger Court, which was only slightly better than the Warren Court. Yet the Rehnquist Court has in important respects been a disappointment. Consider Roe v. Wade, the 1973 decision that invented the abortion right, thus destroying self-government on an issue previously left to the people. The Rehnquist Court has not only declined to overrule Roe but also reaffirmed it in the 1992 case of Planned Parenthood v. Casey. Too many times the Rehnquist Court, notwithstanding its dominance by appointees of Republican presidents, has regarded Supreme Court precedents like Roe as sacrosanct, placing them above the Constitution itself. Against the anti-constitutional tendency of judicial supremacy, Justice Scalia, joined by Justice Clarence Thomas, has consistently dissented.
Fortunately, for a Court that needs judges who will abide by the Constitution, there is no shortage of qualified people who would be available for appointment. They include appellate judges Sam Alito of the Third Circuit, J. Michael Luttig and Harvie Wilkinson III of the Fourth Circuit, Edith Jones of the Fifth Circuit, Danny Boggs of the Sixth Circuit, and Michael McConnell of the Tenth Circuit. We’d add to this (non-exhaustive) list two individuals who aren’t judges–Solicitor General Theodore B. Olson and Sen. Jon Kyl of Arizona.
Will Bush choose an Alito or a Luttig or an Olson? His generally excellent choices for the circuit courts suggest he might. But it’s hardly a sure thing. He might be tempted simply to “trade up”–to get someone who is better at the margins than, say, Stevens, the lone Ford appointee who long ago joined the Court’s liberal bloc. Or better than O’Connor, Reagan’s first appointee who often votes with Scalia and Thomas (and Rehnquist and Justice Anthony Kennedy), but whose opinions sometimes lack a rule of law clear enough to provide useful guidance. Simply to trade up, however–unless the trade is all the way up–is to waste an opportunity to influence the direction of the court. And Republican presidents since Nixon have wasted too many of these opportunities. What’s amazing is how many they’ve had–eight of the last ten vacancies occurring on their collective watch. Bush surely will not want to waste the first one he gets.
There is also the temptation to nominate White House counsel Alberto Gonzales, who since Austin days has been a member of Bush’s inner circle. Were Bush to appoint Gonzales, he would be the Court’s first Hispanic, and as such, Bush might be told, a signal to the growing Hispanic population that its home is in the Republican party. But Gonzales would be a problematic choice for the Court. His legal career so far doesn’t justify confidence that he would turn out to be a justice having the “strength of mind,” “consistency of convictions,” and “judicial philosophy” Bush admires. If Bush wants to engage in diversity politics, he can confine that enterprise to the executive branch and not extend it to the judiciary, where the appointments are for life. He could, for example, name Gonzales his next attorney general, in which case he would be the first Hispanic in that post.
A third temptation is to nominate someone without much of a paper trail who, the candidate’s advocates would claim, will prove Scalia-like on the bench. In other words, a “stealth” nominee. For a president who has endeavored not to repeat his father’s mistakes, we would hope the sufficient answer to that suggestion is the name David Souter. Appointed by George H.W. Bush in 1990, Souter is no longer a blank slate but a jurist of whom the most partisan Democratic president could be proud.
Stealth is the strategy of those who imagine that a fight on principle with Senate Democrats can be avoided. It can’t be. Even from a nominee with the dullest, offensive-to-no-one résumé, Senate Democrats will demand a confession of belief in the Supreme Court’s abortion jurisprudence.
Here it must be said that the entire point of the Democrats’ strategy on Bush’s circuit nominees–whether as the majority, delaying and not holding hearings, or as the minority, engaging in filibusters–has been to influence the kind of choices the president makes for the circuits and, especially, the Supreme Court. Already Democrats are offering Bush advice on his Supreme Court choices. Last week Charles Schumer suggested that Bush pick his Senate colleague, liberal maverick Arlen Specter!
The president can’t avoid conflict with Senate Democrats, not if he is going to name someone like Scalia. And indeed, were Rehnquist to step down, we would like to see the Democrats try to oppose Scalia as his replacement and to get the fight over principle well joined. Scalia is abundantly on the record on the issues that matter, including Roe v. Wade and Planned Parenthood v. Casey. (“If only for the sake of its own preservation,” Scalia wrote in a 2000 case, “the Court should return [abortion] to the people–where the Constitution, by its silence on the subject, left it–and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.”) We can think of no one more able to stand his ground, and for right principle, than Scalia.
Yet Scalia should not have to stand alone. Nor should any other nominee. The great lesson of the Bork nomination is that a president must fight for his Supreme Court nominees. Bush should be ready to engage. So should his aides, though it is unclear who would do the job. Attorney General John Ashcroft has been oddly silent on judges. Perhaps Vice President Cheney, whose vote might be needed, could rise to the occasion. In addition, why not let the nominee make his own case? Surely it is time to move beyond the antiquated custom in which the nominee is required to keep silent while interest groups and senators slander him.
In any case, it will be important to make arguments that go beyond the shopworn phrases, “strict construction” and “judicial restraint.” Specifically, the administration will have to explain why we need justices who construe the Constitution fairly, who recognize its powers but also enforce its limits, who decline to extend or create rights that aren’t found in the Constitution, and who are willing to overrule holdings at odds with the Constitution. Let Senate Democrats argue for justices who embrace unlimited national power and create new “constitutional” rights whose enforcement necessarily leaves less room for self-government.
A presidency is always defining itself. So far the Bush presidency–though no one could have predicted this before September 11–has defined itself largely in terms of national security and foreign policy. If a vacancy on the Supreme Court occurs, another defining moment for this president will present itself, and the choice Bush makes will reveal his true commitment to constitutional self-government.
–Terry Eastland, for the Editors
