THROUGH A CAMPAIGN AIDE, Bush answered a question about the kind of Supreme Court justice he admired. The answer was Antonin Scalia, a conservative. That was in 1999, as Bush was beginning his race for the presidency. He was asked a similar question later that year by Tim Russert on Meet the Press. The answer was the same–Scalia. Now jump to the summer of 2003 as Bush is preparing for his reelection campaign. Meeting with advisers at his ranch in Crawford, Texas, Bush said one of his top priorities is to create a diverse Republican party with many more Hispanics.
Bush’s comments point to the two directions he must choose between in selecting a nominee to replace Sandra Day O’Connor on the Supreme Court. The first–the Scalia direction–would be to pick a respected conservative jurist and thus move the ideological tilt of the court to the right. The second would be to choose Attorney General Alberto Gonzales or another Hispanic, a step unlikely to change the court’s current ideological posture.
The first would be in sync with the thrust of Bush’s presidency. As Bush and his aides never tire of telling everyone, he came to the White House to do big things and achieve important changes. And transforming the Supreme Court into a more conservative body and shrinking the role of unelected judges in American life is one of his major goals.
Bush also prides himself on not doing the easy or politically popular thing. He could have sought minor adjustments in Social Security to improve its solvency, but he chose to promote total reform. After routing al Qaeda terrorists in Afghanistan, he could have stopped and gone no further, preserving his high poll rating. Instead he deposed Saddam Hussein in Iraq.
Nominating a full-blown judicial conservative–there are plenty to choose from–would surely provoke a bitter confirmation struggle in the Senate. He might even lose the fight. But all of Bush’s accomplishments have come over the strong opposition of Democrats or have drawn sharp criticism from them. This includes tax cuts, education reform, creation of a Homeland Security Department, and Iraq. Bush’s motto, if he had one, should be no pain, no gain.
Placing another conservative on the high court, and perhaps several more if other resignations occur, would give Bush a lasting and extraordinarily significant legacy. And by nudging the court to the right Bush would merely be counteracting what President Clinton did with his two Supreme Court nominations. Clinton filled vacancies on the court with liberals Ruth Bader Ginsburg and Stephen Breyer. Each replaced a more conservative justice, Harry Blackmun and Byron White, respectively.
Naming Gonzales or another Hispanic to the high court would be in line with Bush’s political goal of enlarging the Republican party. And picking Gonzales might indeed help in that regard. He would be the first Hispanic justice. A Gonzales nomination would also be personally satisfying to Bush. “The president loves Alberto Gonzales and trusts him,” Texas Senator John Cornyn, a friend of both, said. Gonzales was Bush’s White House counsel before becoming attorney general.
But there’s a difference between trying to improve the position of a political party and seizing an historic opportunity to change both the role and the rulings of the federal judiciary. The first is a decision any president or politician would make. Given the furor the second could provoke, it’s a decision only a few presidents would make. My guess is Bush is one of them.
Fred Barnes is executive editor of The Weekly Standard.
