Today's Opinions, Tomorrow's Reality
By David G. Young
Washington, DC , July 5, 2005 --
When the Supreme Court session ended last Monday without an expected retirement announcement by Chief Justice William Rehnquist, America's media and advocacy organizations went into a panic. Boilerplate news stories and press releases, long since written to cover the matter, had to be set aside. New copy had to be generated to go on the front page. Program directors for countless news talk shows had to go back to the drawing board to find new topics to fill hours of dead space.
By Tuesday morning, even the "no retirement" news story had grown stale, and television magazines were forced to fill the airwaves by dipping into the desperate standby of the odd summer shark attack. So it was with great relief to the voracious news talk machine when Associate Justice Sandra Day O'Connor unexpectedly announced her retirement on Friday. Pundits, reporters and sundry advocates made U-turns from planned holidays, and recycled their Rehnquist speeches to proclaim the unprecedented importance of the Supreme Court vacancy from countless podiums inside the Washington Beltway.
For all the bluster, there is just one problem. The retirement and replacement of Sandra Day O'Connor is unlikely to make a major difference in future decisions of the Supreme Court. This is true for the simple reason that both she and her successor associate justice have an important thing in common -- appointment by a conservative Republican president. And while Ronald Reagan, who appointed O'Connor, and George W. Bush, who will point her successor, have many important differences, judicial philosophy does not happen to be one of them.
Predictions of a major confirmation battle are therefore overblown. Bush's first Supreme Court appointee is likely to face a quiet and orderly confirmation as occurred in the case of Clinton's two appointments. Like this case, Clinton's appointments caused minimal shifts in the orientation of the court. Seats filled by left-leaning justices Harry Blackmun and Byron White were filled with left-leaning Ruth Bader Ginsburg and Stephen Breyer. This is a major difference from the knock-down drag-out confirmation battles of the late '80s and early '90s, when conservative judges Robert Bork and Clarence Thomas were appointed to replace far more left-wing retirees. This summer's change on the Supreme Court, in contrast, promises no interesting change.
Similarly unexciting is the prospect that leftist organizations and Democratic Senators keen on fighting conservative appointments are unlikely to accomplish anything. Republicans have a comfortable majority in the Senate capable of confirming any Bush appointee they choose. They are armed with an anti-Filibuster pledge by moderate Democratic Senators, and should that fail, Senate Majority Leader Bill Frist has held out the possibility of the "Nuclear Option" of ending the Filibuster should Democrats even try to block a Bush nominee to the court. Simply put, the Democrats and their leftist allies are powerless to block any Bush appointee.
Any hope for a Supreme Court shake up or an interesting confirmation battle rests entirely in the hands of the unexpected. Two current members of the Supreme Court, Republican-appointees Anthony Kennedy and David Souter turned out to be far more left-wing than intended by presidents Reagan and George H.W. Bush, respectively. There's always a chance that a similar mistake could happen again.
Another unexpected turn could come from embarrassing revelations about the appointee's personal life. Reagan had to withdraw candidate Douglas Ginsburg after he admitted to occasional marijuana use. Anita Hill's allegations of boorish behavior by Clarence Thomas left that justice's reputation permanently scarred.
But even in the case of an incredibly unlucky roll of the dice by President Bush, there is little chance of a serious Bork or Thomas-like confirmation battle. Neither of the required ingredients -- an expected power shift and ample opposition votes -- exist to fuel the fire. The summer looks very boring, indeed.