More Disorder in the Court?
If there's a Supreme Court vacancy, the Democrats will have a lot to say about it
Compromise?
"The $64,000 question is, What will the president do?" says Elliot Mincberg of the liberal People for the American Way. "The best precedent is under Clinton, when Republicans were in the majority in the Senate and Clinton consulted with Orrin Hatch, the Judiciary Committee chair." Hatch is said to have talked the president out of nominating Bruce Babbitt, a former Arizona governor then serving as Clinton's interior secretary. But the GOP-controlled Senate confirmed Clinton's eventual pick, Ginsberg, and a year later also approved Stephen Breyer for the high court. Both have proven reliably liberal counterweights to Justices Clarence Thomas and Scalia. Republicans say Bush should be shown the same deference–it's his pick, and the new Senate should confirm qualified nominees even if it doesn't share their philosophies. There is some talk that consensus could be reached if the president picks an older politician with good relationships in the Senate-someone like Hatch or Warren Rudman, a former GOP senator from New Hampshire.
Moderates like Sarah Chamberlain Resnick of the Republican Main Street Partnership argue that conservatives angling for a fight are misreading the public. Watching the election results come in, she says, she concluded that the American people "voted fighting out."
"The president does have something to lose–why would he want to have Democrats vote down his nominee?" she says. Resnick advocates a compromise nominee so Republicans can "get back and keep the White House."
Those who want a window into how a Supreme Court battle may play out under the new world order will be watching closely next year when the Senate again considers the president's nominees for the federal circuit courts, which have 16 vacancies. In a nod to his base in the days following the GOP defeat, the president resubmitted to the lame-duck Congress a slate of five controversial nominees previously filibustered or blocked by the Democrats.
Nan Aron of Alliance for Justice, a progressive coalition that works on judiciary issues, says the president's actions suggest that the chances are slim to none that Democrats will be able to work with the White House on judicial nominees. "It's clear from the little we know so far that the president is going to pursue his court-packing agenda," she said. "No matter how they slice it and dice it, George Bush will not relent."
And yet, with a contentious war still most likely raging in Iraq, will the American public-and the president-have the stomach for a knock-down, drag-out fight over the courts? Perhaps not. But it's hard to imagine the adversaries in this fight simply dropping their gloves.
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