Friday, Jul 4, 2008
If the Supreme Court justices who handed Bush the presidency retire during his term, not only will they spark a virtual civil war, they'll destroy the integrity of the high court.
Jun 13, 2003 | While the political industry makes its preparations for a possible Supreme Court nomination cage match, it seems constructive, in this relative calm before the storm, to ask whether there's any way the coming crisis can be avoided. Some of the most fervently partisan members of both sides would likely either deny that the damage from this fight will be so bad or argue that it is a battle that must and should be fought, whatever the damage. For those who disagree, however, and who would prefer not to further erode the legitimacy of the judicial branch, we should closely examine the circumstances surrounding a prospective Supreme Court vacancy and look for paths around the quicksand.
The likelihood of at least one vacancy this summer is, in fact, fairly high. There hasn't been a departure from the Supreme Court since Justice Harry Blackmun retired in 1994 -- the longest such span since the 1820s. According to press reports, both Chief Justice William Rehnquist and Justice Sandra Day O'Connor have apparently confided to friends that they have considered retirement; the chief justice even made what was intended to be a low-profile visit to the White House last December, which seems to have solidified expectations that he will retire shortly. Although there has been no actual announcement of anyone leaving the court, the stars are certainly aligning and most court-watchers have concluded that at least one vacancy this summer seems much more likely than not. Already, high-profile Republicans have begun fundraising for a project to support potential Supreme Court nominations.
Regardless of the qualifications and preconceptions of whomever the president would choose to fill this vacancy, the crisis threatening to erupt around a nomination will unavoidably involve two issues that grow directly out of the circumstances of the president's election. First, the way in which the court ended the Florida recount supports a facile allegation of conspiracy: five conservative Supreme Court Justices corrupted decades of federalist precedent to guarantee the inauguration of a like-minded president so that he, for his part, will turn like-minded judges into like-minded justices. Granted, allegations of this kind are typically written out in longhand over 60 or 70 densely spaced pages, but nevertheless, as the saying goes, even paranoids have enemies. It really makes no difference whether Justice Scalia ever called then-Gov. Bush on the phone to say "Listen, here's how this is going to work," because a Supreme Court nomination at this point will achieve the same outcome whether anyone conspired to obtain it or not.
The second and far more serious failing that would arise from a nomination now would be its lack of accountability within the democratic process. Supreme Court justices are not elected, but instead are appointed for life; that is supposed to insulate them from politics and political pressures. But if one or two justices were to retire now, they would have inordinate power to shape the court -- and the course of the nation -- for generations ahead. The process of making these replacements is, or at least always has been, a one-way street. In every other presidency in our nation's history, the sitting members of the Supreme Court have had no greater say over who would choose their potential replacements than did any other voter -- clearly, that would not be true at this time for this court and this president.
To be absolutely clear, my point is not that President Bush can't make a Supreme Court nomination in this term. It's that he shouldn't have to, or failing that, that he just shouldn't. President Bush holds his office in spite of the democratically expressed will of the national electorate, not because of it. It is not a repudiation of his legitimacy as president to observe that simple point of fact. Whether or not you consider the Electoral College to be a pointless anachronism, in the 2000 presidential election it indisputably led to an undemocratic result: The holder of the nation's highest office is not the person who got the most votes.
In this way, President Bush may have been lucky that he could not claim a wider victory in Florida's balloting, since the maniacal recount process that followed overshadowed any in-depth consideration of the legitimacy of his mandate in light of his popular vote defeat. The initial fascination with the recount and the high-profile way in which Bush vs. Gore was seen, by many, to put a merciful end to the entirety of what had become, for a great many, kind of a pain in the ass was thus especially happy news for the Bush administration, since prior to the election his campaign had been openly considering an advertising blitz and street protests had he lost the presidency despite winning the popular vote.
Taking the Republicans at their pre-election word, then, that they likewise consider this result to be undemocratic, it would seem you need to reach one of two conclusions: Either democracy doesn't matter (or at least, it shouldn't stand in the way of putting conservative justices on the Supreme Court), or it is worse to choose the leaders of two branches of government in spite of the democratic mandate of the nation than it is to choose the leader of one. In short, a Bush appointment to the Supreme Court would not be unconstitutional, but it would be fundamentally undemocratic, which -- and I suspect the pre-election Republicans would agree -- is even worse.
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