WASHINGTON, July 1 - The Senate braced on Friday for a Supreme Court confirmation fight that threatens to strain a tenuous new agreement on handling court nominations and plunge the chamber back into partisan strife.
Even though President Bush has not announced a nominee, some leading Democrats made clear that they would oppose any candidate whom they judged too conservative, particularly because the candidate would replace Justice Sandra Day O'Connor, a moderate.
"If the president abuses his power and nominates someone who threatens to roll back the rights and freedoms of the American people, then the American people will insist that we oppose that nominee, and we intend to do so," Senator Edward M. Kennedy, Democrat of Massachusetts, said on the Senate floor.
In a move intended to prod Mr. Bush into consulting with them, Democrats repeatedly invoked President Ronald Reagan, a staunch conservative whose nominee Justice O'Connor was confirmed 99 to 0.
Republicans, trying to avoid a fight, called for "a fair confirmation process," in the words of the Senate majority leader, Bill Frist of Tennessee.
What made Sandra Day O'Conner such a powerful judge was her ability to move into the center of any debate between the factions in the court. She recognized who belonged into the liberal or conservative ideological camps, and made a conscientious decision to stay in the center. Once in the center, she could use her legal reasoning and influence to form a consensus opinion on court cases. This is a powerful tool that she learned and adapted from her days on the Arizona state legislature. And as a moderate conservative, she was open towards changing her thinking to reflect new ideas and new forms of reasoning. She was not constrained by ideology, but rather independent. In a political system which has become fiercely partisan, where political parties fight to win at all costs and demonize the opposition, and where the rancor of today's politics will now shift towards the Supreme Court, Sandra Day O'Conner was a rare judge that will be missed.
President Bush has a tough choice to make--and this choice isn't about who to nominate to the Court. This choice is rather how does he want to be seen in his legacy as president. The Democrats and liberal side of this partisan country know Bush will pick a conservative. They are certainly hoping that Bush will chose a nomination similar to Sandra Day O'Conner's views and reasoning. The Democrats will fight--with the filibuster--if they do not see a nominee similar to O'Conner. On the other side, you have the Religious Right-wingers who are telling Bush that he owes them for the Religious Right's support in his re-election. Payment for the Religious Right are hard-line conservative justices so that the Religious Right can overturn abortion. Bush likes justices with views similar to Antonin Scalia or Clarence Thomas--ideologues. The Democrats won't allow that type of justice to replace O'Conner. So the real question for Bush is does he actually sit down with the Democrats and propose a truly bipartisan nominee that the Democrats can accept (O'Conner was confirmed 99-0 in the Senate), rather than the rubber-stamp compromises Bush has been trying to shove down the Democrat's throats? Or will Bush simply choose his own ideologue, in which the Democrats will strongly oppose and filibuster? We will then see a nuclear war in the Senate--a war that will be closely watched by the American public. With much of Bush's legacy already in peril--support for the war in Iraq and Social Security privatization is quickly fading--a protracted fight showing Bush as "packing the Supreme Court," could also cause his poll numbers to drop further.
That is the real question. And until Bush decides how he wants to be viewed in his presidential legacy, we won't know who Bush chooses, or how the Senate fight will shape up. One thing is certain. Once Bush does choose a replacement, the pressure will then be on Senate Majority Leader Bill Frist to push confirmation of that nominee through the Senate. Frist will be under even greater pressure to get the votes because he has to placate the Religious Right, if he wants to keep his own presidential election hopes alive for 2008. So if Bush does nominate an ideologue, Frist will change the parliamentary rules on the filibuster, forcing the nuclear war. While there is no doubt that a hard-lined conservative nominee will be confirmed, this will certainly alienate moderates and independents away from the Republican Party and clearly show Frist as being in the camp of the Religious Right. The partisan rancor would be the worst this country has ever seen, and will certainly spill over to the 2006 midterm and 2008 presidential elections.
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