Activists Preparing for O’Connor Replacement Fight

The major story covered by the press continues to be the looming fight over Sandra Day O’Connor’s successor on the Supreme Court.

Activists Gear Up For Nominee Fight (WaPo, A1)

Many of President Bush’s conservative supporters lined up in staunch opposition yesterday to the candidate he might personally most want to name to the Supreme Court, his longtime friend and adviser, Attorney General Alberto R. Gonzales, as battle lines were drawn for selection of the first new justice in more than a decade. Bush has long been intrigued by the idea of making Gonzales the first Hispanic on the Supreme Court, according to advisers, a prospect that might seem especially tempting in replacing Justice Sandra Day O’Connor, the court’s first woman. But a range of activists and congressional Republicans warned the White House against the move, saying they do not consider Gonzales a steadfast conservative.

“We would oppose him because we don’t believe he has a philosophy that we can determine. We are not enthused,” said Tom Minnery, vice president of public policy for Focus on the Family, a conservative advocacy group. “He is someone who is apparently still developing his philosophy, and that’s not good enough,” Minnery added, citing Gonzales’s “lack of open commitment to interpret the Constitution as it was written.”

[…]

Some conservatives yesterday advanced the strategy of naming Janice Rogers Brown, who was confirmed last month to the D.C. Circuit after a Senate battle. Having just confirmed Brown, activists reason, Senate Democrats would not be able to turn around and argue that she meets the criteria of “extraordinary circumstances” deserving a filibuster as defined by a recent bipartisan deal on judicial nominations. And as a black woman, she would be harder to vote against, these strategists reasoned. “She’s just been through the process,” said Gary L. Bauer, president of the Christian organization American Values. “It’s kind of hard to vote for her once and then turn around and say she’s unacceptable.”

[…]

Yet some conservatives have resigned themselves to Gonzales. Robert H. Bork, whose Supreme Court nomination was defeated in 1987, said his friends believe Gonzales will be the nominee and that lobbying will not change that. “Already, people have been pushing various candidates, but I don’t think that’s going to have much effect on Bush,” he said. “I think he already knows what he wants to do.”

Conservative Groups Rally Against Gonzales as Justice (NYT RSS)

Within hours after Justice Sandra Day O’Connor’s announced retirement from the Supreme Court, members of conservative groups around the country convened in five national conference calls in which, participants said, they shared one big concern: heading off any effort by President Bush to nominate his attorney general, Alberto R. Gonzales, to replace her. Late last week, a delegation of conservative lawyers led by C. Boyden Gray and former Attorney General Edwin Meese III met with the White House chief of staff, Andrew H. Card Jr., to warn that appointing Mr. Gonzales would splinter conservative support. And Paul M. Weyrich, a veteran conservative organizer and chairman of the Free Congress Foundation, said he had told administration officials that nominating Mr. Gonzales, whose views on abortion are considered suspect by religious conservatives, would fracture the president’s conservative backers.

The groundswell of opposition to Mr. Gonzales was just one sign of the conflicting forces suddenly swirling around Mr. Bush this weekend as he headed to Camp David to begin considering a replacement for Justice O’Connor, a decision his aides said would not be announced before he returned from a trip to Europe at the end of next week.

Senate Democrats demanded that he consult them before making a choice and appoint a pragmatist in Justice O’Connor’s mold. Conservatives, flexing their muscles in a battle they have spent a decade preparing for, described the nomination as a test of Mr. Bush’s convictions and past promises, and his biggest opportunity yet to assure that the Bush presidency will leave a conservative stamp for a generation to come.

Liberals gird for Supreme struggle (WaTi)

A group of the most influential liberal court lobbyists gathered in a high-ceilinged room across the hall from the Senate chamber, within hours of Supreme Court Justice Sandra Day O’Connor’s retirement announcement Friday. With grave expressions on their faces, the activists stood somberly behind a lectern and one-by-one delivered impassioned pleas that Justice O’Connor be replaced with a jurist who will protect their particular interests. “This is a watershed moment,” said Ralph G. Neas, president of People for the American Way, noting that this fight will be even more momentous than the one for which they have been preparing for years, the successor to the chief justice.

Most active court watchers were expecting to see the resignation of Chief Justice William H. Rehnquist, an unwavering conservative on the court. With the surprise announcement from Justice O’Connor, often a swing vote on the court, liberal activists such as Mr. Neas rushed from playing offense on replacing a conservative to having to defend a vital vote. “Over the last 10 years, we have not had a Rehnquist Court; we’ve had an O’Connor Court,” he said, arguing that replacing her with a reliable conservative would be a “constitutional catastrophe.”

Less vocal last week — but every bit as powerful and involved in the judicial-selection process — were conservative activists, some of whom chuckled with delight over their turn of good fortune. “The game hasn’t changed, but the post-game celebration will be much bigger,” said Manuel Miranda, chairman of the conservative Third Branch Conference. “Drinks will be on me.”

NOW Leader Focuses on O’Connor Replacement (AP)

The newly re-elected president of the National Organization for Women says she’s ready to do battle over the replacement of outgoing U.S. Supreme Court Justice Sandra Day O’Connor. Kim Gandy, 51, was re-elected to a second four-year term Saturday, defeating challenger Rosemary J. Dempsey, who has held several leadership roles since joining the organization in 1970. “The first fight will be the O’Connor replacement, which will be a battle only if George W. Bush makes it a battle,” she said. “If he appoints an extremist, he will have a big fight on his hands.”

The bottom line is that Neas is right: This has been O’Connor’s Court. She was the swing vote in most of the major cases of the past decade plus and was often the Justice at whom the contending parties aimed their briefs. In the current political climate, replacing her with a Bork- or Scalia-type conservative is simply unrealistic. A moderately conservative pick in the Gonzales mold who would move the Court somewhat to the Right is the best conservatives can hope for.

Politics in a democracy, let alone one with separation of powers, is all about compromise. Gonzales, while controversial, would be difficult to defeat. His name has been atop Bush’s short list since the 2000 campaign. While I’ll not be dancing for joy if he’s nominated and confirmed, I’d prefer him to a stealth candidate like Souter who is an unknown quantity.

Would I prefer that Bush undo the Bork defeat, as Bill Kristol urges? Sure. But the votes simply don’t exist to achieve that, short of the nuclear option being invoked. The Senate Republicans have already proven they don’t have the stomach to do that.

Unfortunately, Orin Kerr is likely right that something approaching the status quo is what we’ll wind up with. As he points out, the Court has four consistent liberals plus Anthony Kennedy and O’Connor. Even if Bush managed to get a true conservative through the Senate, that would still leave Kennedy as a swing vote. Even the retirement of Chief Justice Rehnquist might not make a difference:

Rehnquist’s departure would drop the number of conservatives on the court from three to two. Bush would nominate two instead of one, but the new justices, taken together, may end up mirroring the would-be combined votes of Rehnquist and O’Connor.

Finally, the legal principle of stare decisis will limit the changes. By institutional tradition, the Supreme Court overturns prior decisions only rarely. The justices routinely decline to overrule old cases even if they would have reached a different result the first time.

In other words, once a case is decided, it tends to stick around. This practice helps explain why most of the major decisions of the liberal Warren Court from the 1960s remain on the books today. It also suggests that most of the decisions shaped by O’Connor will remain the law in the future.

Sadly, true.

For a conservative revolution to hit the Court, the GOP will need to get 60 or more reliably conservative members elected to the Senate. Mathematically, that could happen in 2006. Realistically, that’s incredibly unlikely.

Revolutions don’t happen with small majorities. Frustrating though that may be for conservatives, that’s reality. It’s also probably a good thing for the long-term health of the Republic. It is no accident that the Framers designed the system this way.

FILED UNDER: General
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.