Monday, June 20, 2005


Hint: It's the moderation, stupid!

(That's "stupid" as in "President George W. Bush," just in case you weren't sure.)
War Rooms (and Chests) Ready for a Supreme Court Vacancy

Like hostile nations on the edge of apocalypse, Washington's political right and left are on code red over a Supreme Court vacancy that does not yet exist.

Conservative groups held a briefing last week at the National Press Club and promised to spend more than $20 million promoting whomever President Bush nominates to replace Chief Justice William H. Rehnquist, should the ailing chief justice retire at the end of the court's term in June, as many expect. The liberal group People for the American Way countered with the threat of its 45-computer war room on M Street and a coalition of 70 other groups to fight back.

Caught in the middle was the White House, which had its own war plan but would not say so publicly for fear of looking ghoulish. After all, the intentions of the 80-year-old chief justice, who has undergone radiation and chemotherapy treatments for thyroid cancer, remain mysterious.


The atmosphere surrounding Supreme Court nominations has changed sharply since the day that William O. Douglas, nominated to the court in 1939, became impatient waiting outside the closed door of the Senate Judiciary Committee room and sent in a message asking if the panel had questions for him. It did not, and he was speedily confirmed.

Although nomination fights are not unusual - the Senate rejected more than a quarter of all Supreme Court nominees in the 19th century - it was not until the spectacles of the failed nomination of Robert H. Bork in 1987 and the Clarence Thomas-Anita Hill hearings in 1991 that they became all-out, multimillion-dollar campaigns. Both sides agree on one thing: the court has increasingly become the battleground for the nation's most polarizing issues, like abortion, affirmative action and gay rights.


Liberal groups say they are particularly edgy this time around because Mr. Bush has said that he admires Justices Thomas and Antonin Scalia, two of the court's most ardent conservatives. They also say that the biggest fight will not be over a Rehnquist retirement, when the conservative chief justice is likely to be replaced with another conservative, but at the departure of one of the court's liberal members, like John Paul Stevens, or of one its swing voters, like Sandra Day O'Connor.
I got a hint for you, Spanky: Appoint a moderate! Consult with everyone first and then name someone everyone can support! Democrats will understand that a conservative President and a conservative Senate will nominate and confirm only a conservative Justice - but conservative does not have to mean radical reactionary right wing nut!

I realize this means Bush will have to defy James Dobson and Gary Bauer - for once in his rancid presidency - but it would also mean he could actually get his nominee confirmed quickly and without the fight everyone is gearing up for.

But that, of course, assumes that getting a nominee confirmed quickly is what Bush wants. And, of course, it isn't. The fight is what he and his rabid followers want. It energizes them and permits the group that controls the White House, Congress, and most of the media to whimper and feel sorry for itself and delude itself that they are the poor oppressed victims. In a narrow sense, it's shrewd of Bush to operate this way. In a long-term, truly patriotic sense, however, it is monumentally despicable of him. It further polarizes a polity that is already far too divided. He is the president of the entire country, not merely the tiny portion of the most vicious right-wing Republicans who support him as if he were a God-King and not merely another elected official. It is time for him to act as the president of the entire country and govern accordingly

Did Bill Clinton seek to drive the appointment process as far to the left as he could? No, he did not. He nominated highly qualified jurists who sailed through the Senate (Ginsburg was confirmed 96-3 only 6 weeks after being nominated; Breyer was confirmed 87-9, 12 weeks after being nominated). Right wingers may froth at the mouth as much as they like about Ginsburg and Breyer, but those vote figures speak for themselves.

George Bush can't even dream about getting such lopsided majorities for his favored court nominations - and the sad thing, the horrible thing is, he doesn't want such lopsided majorities. He wants controversy, he wants Democratic opposition that he and his fundraisers can distort to their red-meat-seeking red state dupes as "Democratic obstructionism." Shrewd but stupid.

And, what's worse, the press is even stupider because it trembles fearfully and truckles under in obeisance rather than use its eyes and its ears and its brains and label this schismatic president for what he is - a willing captive of the most extremist right wing that has ever existed in this country.

There are plenty of conservative jurists out there who the Senate would eagerly, gratefully confirm for a spot on the Supreme Court if George W. Bush would only do the right thing - for one of the few times in his life - and nominate one of them. Democrats would fall over themselves to vote for the modern equivalent of an Anthony Kennedy. But will Bush stiff his barking dog followers, will he rise above the constipated meanness of Limbaugh or the imperious self-idolatry of Dobson and name someone merely because the person is qualified and not because he is a potential spark for another endlessly nasty fight?

As Yoda says, Your breath, do not hold.
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