Beyond Rock, Paper, Scissors
With wounds still raw from an angry presidential election, this is not an ideal time to nominate a new chief justice of the United States. But that's what President Bush will almost certainly have the opportunity to do. And soon.
Chief Justice William H. Rehnquist is 80 years old and battling cancer. On Jan. 20, he administered the presidential oath of office for the fifth time, but all indications are that he will retire soon. When that occurs, a new chief justice will be selected for the first time in almost two decades.
The president, who has demonstrated a pronounced ideological bent in his judicial selections, must now navigate the nomination process with considerably greater care. This is not for the sake of conciliation but because his lame-duck status will become crippling in a couple of years or so, and the momentum of his agenda cannot afford a prolonged filibuster.
He could avoid that distraction simply by honoring his promise in the debates to avoid a "moral values" litmus test in selecting Supreme Court candidates. But that's not going to happen. The president has repeatedly demonstrated an intention to populate the federal bench with judges who mirror his conservative social values.
The Republicans, however, do not have the 60 votes necessary to defeat a filibuster. He therefore needs a plan to circumvent the talkathon strategy. Most likely, this will take the form of giving with one hand while taking away with the other by putting forth two candidates at once. Ronald Reagan employed a packaging strategy in 1986, nominating a new chief justice from the ranks of the associate justices, and a new associate justice to replace the one elevated. But he failed, at significant political cost, to recognize the need for compromise. By nominating a conservative but relatively centrist chief (i.e., a conservative who occasionally shifts toward the center, including on social issues), Bush will earn kudos, and political capital, for his restraint. With that additional capital, he can invest in his "values" agenda by filling the associate-justice vacancy with a staunch social conservative, a move that has a much more profound, and longer-lasting, effect on the ideological balance of the court.
