O'Connor

Last week's "Friday dump" included Justice Sandra Day O'Connor's resignation. That such news breaks on Fridays is par for the course, and that O'Connor, whose husband is not in good health, should retire is really no surprise. If we want surprises, we may have to wait for Bush to put a name forward. Still, let's consider a few things that the spin machines have already been throwing out.

From the left:
Bush should take this opportunity to name a jurist who will replace O'Connor ideologically. OK, so "should take this opportunity to" tends to be phrased as "has an opportunity to" and gets coupled with Bush's 2000 campaign pledge (as yet unfulfilled, truth be told) to be "a uniter, not a divider."

Bush has no obligation to appoint anyone of any kind. Heck, he can appoint Martha Stewart if he wants. The problem is that that he has to remember Article II, Section 3 of the Constitution. Before the word "consent" are the words "advice and." If he wants a strict interpretation of "advice and consent of the Senate," he had best remember that the Senate is more than just Republicans.

From the right:
Bush doesn't need to worry about the Democrats, so he may as well appoint a staunch and loyal conservative. Um, no. He won't get a hardliner to a committee vote, much less to the floor of the Senate. Why do I say this? Arlen Specter has even come out with an admonition that the President should consult broadly with the Senate and name a concensus justice. Since Specter runs the Senate Judiciary Committee, he can take any name he wants and refuse to bring it up for vote. It's one thing to be opposed by the opposition party, but when members of one's own party—especially those with the power to stop you dead in your tracks—tell you to behave yourself, you had better listen, Mr. President.

The Senate is divided 55-44-1, though on a hardline candidate, Vermont's independent will almost certainly count as a Democrat. Some observers think that this is going to be easy for Bush. All he needs to do is dash off whomever he wishes, Specter's committee will push it through on a party line vote, and the floor will go from there. Sadly, Fox "News" tried making this case with half of their memory erased.

The Fox people talked about the "Gang of 7" in the Senate—seven Democrats who struck a deal to avoid a filibuster on judicial nominees earlier this year. What they seemto have forgotten was that this was the "Gang of 14" and included seven Republicans. If that cabal holds (and assuming the I becomes a D for these purposes), the Senate will be 48-52 against a hardline candidate—never allowing a vote, yet avoiding the so-called "nuclear option" to remove the filibuster on judicial nominees.

The Senate has the power of the middle, and the President will have to accept that. We won't see another Scalia or Thomas in this appointment. While 41% of Americans want a more conservative justice and 30% want a more liberal justice, 61% of Americans want a justice who will (as O'Connor did) uphold Roe v. Wade. Moderation.

This brings up a red herring we are likely to have visited upon us by the White House: abortion. Will someone, probably on the left, ask how a potential justice will vote on abortion? Probably. It will almot certainly be Kennedy. Does this mean it is a "litmus test" for the candidate? No. It can sway public opinion, perhaps, but almost any major issue can be put in its place. Consider this hypothetical exchange:

Senator: How would you vote on gun control?
Nominee: I fully support any law that allows private citizens access to firearms.

Feel free to change "support" to "oppose." Regardless, the nominee should be trashed. Heck, turn the issue and response to abortion, the death penalty, or anything else that often drives single-issue voters. The simple fact remains that anyone—ANYONE—who is willing to state unequivocally before the Senate how he or she will vote on any issue is not someone that either side should want on the bench. Supreme Court Justices need to possess wisdom and intelligence. Dogma, however, is antithetical to the job description.

And now we come back to our original problem: Whom should Bush appoint? Can so dogmatic a president accept someone who is not dogmatic? Will Bush demonstrate that wisdom is, over the long term, more valuable than a few political points? I hope so. I doubt it.