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August
1, 2002 11:05 a.m.
Resign,
Chief Justice!
And
other practical advice.
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f Republicans
take the Senate in the fall elections, surely one or more Supreme Court
justices will retire next year. One assumes that some of them are just
about ready to do so, but are waiting to see if they can do so at a time
when an ideologically similar successor could be confirmed. Chief Justice
William Rehnquist, in particular, is likely to want Bush to be free to
nominate a conservative jurist to replace him.
Waiting for a Republican
Senate, however, may not be the best tactic. Republican Senates do not
just happen by themselves, after all. Nor can one count on Republican
politicians to do what it takes to produce them. Chief Justice Rehnquist
might have been better advised to retire this year, and thus to make his
replacement an election issue.
That would have happened
if Rehnquist had stepped down earlier this year, in time for the Senate
to vote on a Bush nominee to replace him. If Bush had nominated a conservative,
it would have been a win-win situation for his party. If the Senate confirmed
the nominee, Rehnquist would have gotten his wish — and the Democratic
base would be demoralized going into the elections. If the Senate voted
down the nominee, on the other hand, conservative voters would have been
enraged at the unfairness and liberalism of it all and turned out in force
for the elections. In either case, the odds of Republicans' taking the
Senate would have increased.
True, a Supreme Court
fight would have energized the Democratic base too. But liberals are already
likely to have a high turnout. Conservative turnout is a bigger question
mark — and Republicans cannot be heartened by the knowledge that
it seems to have dropped in every congressional election since 1994. A
conservative Supreme Court nominee would have been red meat for the Right,
especially the social Right; but because the fight would not have directly
concerned abortion, school prayer, quotas, etc., Republican politicians
would have been less inhibited in making the case for their position than
they usually are when those subjects come up.
Of course, it would
have been even better if the Democrats rejected a Catholic conservative
nominee. . . .
HEARINGS,
SMEARINGS
Meanwhile, back in the real world, Senate Judiciary Committee chairman
Pat Leahy has agreed to hold hearings for two of President Bush's judicial
nominees, Miguel Estrada and Michael McConnell, before the end of the
year. Senate Republicans seem pleased by the concession.
Why should they be?
Leahy hasn't agreed to hold committee votes, let alone floor votes, on
either nominee. That means that McConnell and Estrada will have to be
renominated in the next congressional session, with new hearings to follow.
New hearings at which Democratic senators, armed with research from People
for the American Way, can try to poke tiny holes in the nominees' previous
testimony and then accuse them of lying to Congress. Why are Republicans
volunteering to make their nominees piñatas?
THE
REAL OWEN RECORD
The major nomination fight of the moment concerns Texas Supreme Court
justice Priscilla Owen, who is accused of being an anti-abortion zealot
because she declined to punch holes in a Texas parental-notification law.
Jason Zengerle has a weaselly piece in the latest New Republic
making this case against Owen. To make the case that President Bush has
an unprecedented abortion litmus test, for example, he glosses over Clinton's
explicit pro-abortion litmus test for judicial nominations — which
was something he promised during his campaign. Zengerle also repeats a
standard talking point against Owen: In one parental-notification case,
her fellow justice Alberto Gonzales — now the White House counsel
— "blast[ed] Owen's position as an 'unconscionable act of judicial
activism.'"
In fact, as Terry
Eastland pointed out in the Dallas Morning News last week, Gonzales's
criticism was directed at another justice, Nathan Hecht. Gonzales was
in the majority in the series of rulings in the parental-notification
case. Hecht, a dissenter, wrote a rather intemperate criticism of the
majority as activist. Gonzales's rhetoric was a response to Hecht. Owen
took a position different both from that of Gonzales and from that of
Hecht.
There is no reason
for Republicans to be on the defensive about Owen — or about parental-notification
laws, which command the support of an overwhelming majority of the public.
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