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ROBED RULERS

"ROBED RULERS" Continued...

Issue: "Supreme warning," July 5, 2003

With no ideological shift at stake, Democrats in the Senate might be expected to let a Rehnquist retirement slip by without a fight. Fat chance. Instead, they're already sharpening their knives. Key liberals on the Judiciary Committee have warned President Bush not to settle on a nominee without first "consulting" them for some acceptable names. Mr. Bush, not surprisingly, rejected the idea out of hand. Presidential spokesman Ari Fleischer blasted Sen. Tom Daschle (D-S.D.) and other Democrats for "com[ing] up with a novel new approach of how the Constitution guides the appointment process."

Democrats have at least two good reasons to fight any conservative nominee. First, a Rehnquist retirement represents more of a danger for the GOP than an opportunity. Republican presidents have a spotty record, at best, in appointing justices who favor judicial restraint and strict construction of the Constitution. David Souter, for instance, is an outright liberal, while Justices O'Connor and Kennedy are centrist at best. Thus, if Democrats could force a more moderate heir to the conservative chief justice, they might actually succeed in shifting the court to the left.

Second, if Mr. Bush sticks by his principles and nominates a strict constructionist, Democrats have to worry about the precedent their votes might set. The battle over Justice Rehnquist's successor will only be a dress rehearsal, after all. Sandra Day O'Connor, the court's most unpredictable swing vote, is in poor health and said to be eyeing retirement. Then there's liberal John Paul Stevens, who, after 28 years on the high bench, is unlikely to last through a second Bush term.

Retirements by either Justices O'Connor or Stevens would touch off a battle for the soul of the Supreme Court. A reliably conservative replacement for either justice would mark a huge philosophical shift, making it immeasurably harder for liberals to legislate from the bench. The problem for Senate Democrats is that if they let a replacement for Chief Justice Rehnquist breeze by, it may be more difficult to oppose the next nominee, when the stakes are higher. If it's OK for a nominee to favor judicial restraint in 2003, why not the next nominee in 2004 or 2005? Republicans would be able to accuse the Democrats of flip-flopping in their standards and playing politics with the nomination process.

Thus, no matter who's the first to retire, the appointment battle is sure to turn ugly. "It will be worse than either the Bork or the Thomas hearings," predicted Mr. Jipping. "The left is good at conducting current confirmation fights to help in future confirmation fights. Their No. 1 rule is 'send a shot across the bow.' They will brand the nominee, no matter who it is, as a right-wing ideologue."

When it comes time to fight for or against a nominee, ideology will drive the debate on both sides of the aisle, simply because liberals and conservatives are diametrically opposed in their view of the proper role of the court. "Conservatives and libertarians see the court primarily as the nonpolitical branch of government," says Cato's Mr. Pilon. Rather than advancing a political cause, conservatives believe the Supreme Court exists solely to interpret the Constitution as the founders intended.

To liberals, on the other hand, "The Constitution is largely an empty vessel to be filled by transient majorities in the legislature or by socially enlightened justices on the Supreme Court," Mr. Pilon says. "Liberals see the court in large measure as one more political body [and] they judge the court according to whether it's carrying out their political agenda." With a strong Republican president and GOP majorities in both houses of Congress, the Supreme Court is looking more and more like the last hope for that agenda. As such, it's surely worth a little bloodletting on the Senate floor.

In Mr. Bush's favor are the sheer number of expected retirements. If he serves two terms, he will likely replace a minimum of three justices. Three brutal, back-to-back confirmation fights like the liberals waged against Robert Bork or Clarence Thomas would leave the Democrats looking petty and obstructionist and risk a backlash by voters concerned about Washington "gridlock."

Still, Democrats have often proven more consistent than Republicans in sticking to their guns over judicial appointments. And, as proved by last week's decisions, there's no issue in Washington that carries higher stakes.

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