Whom will President Bush appoint to replace Justice Sandra Day
O’Connor on the Supreme Court? We can find the answer in his
character and in his past actions.
First consider that the three big “No’s” of the Bush
administration — no to the Kyoto treaty, no to the renewal of the
ABM treaty, and no to the International Criminal Court — came well
before the 9/11 attacks, before the Bush whose wartime performance
seems to have wiped out memory of who he was when he took office.
He does not fear to be unpopular or unfashionable.
Then consider his early, major appointments. He named three
solid conservatives to three important offices, John Ashcroft to
Justice, Donald Rumsfeld to Defense, and Linda Chavez to Labor.
Chavez hid an unfortunate relationship with an illegal alien, and
Bush dropped her like a hot penny. To my memory, no such
embarrassment has taken place with any further Bush nominees.
(Remember “Nannygate” in the Clinton Administration?) The President
also appointed at least two arguable squishes, Norman Mineta at
Transportation and Colin Powell at State.
So yes, he can stick a wet finger in the political winds and
calculate, like any politician.
George W. Bush has a soft spot for Mexico and Mexicans. This
seems at first inexplicable. But, as I have observed before, it
forms part of a long-term political calculation. Peel off 10-15% of
the Latin American vote in the United States, and 10-15% of the
black vote, and the Democratic Party will be no more. And who
knows? There are things a President can’t say, and it could be that
softness on immigration constitutes a kind of payoff to Mexico to
avoid something worse.
So there is a possibility Bush could appoint a Latino to the
Court. His most likely candidate, as widely observed, is current
Attorney General Alberto Gonzales. If the first SCOTUS vacancy had
come up during the early months of Bush’s first term, Gonzales
would be in right now. But his current appointment makes it likely
he will not be appointed. The longer Gonzalez serves as AG, the
less likely his appointment to the high court becomes. He would
have to recuse himself from cases too often.
GEORGE BUSH KNOWS THE SAME thing the Democrats know. This is it,
the battle for which his presidency has been aimed all along. He
expected it, and I don’t think he’ll blow it. What gives all of us
pause is that Bush, however determined and principled, also seems
puzzlingly conflict averse. He just doesn’t like a fuss. And he’s
impatient with propaganda, having to say the same thing over and
over again. (Bill Clinton loved it.) You could see it in his first
debate with John Kerry. Kerry famously said out loud he couldn’t
believe he was losing to “this idiot.” Quite obviously Bush thought
exactly the same of Kerry. In Bush’s view, he
had told the truth once. Wasn’t that
enough?
So, avoiding needless fuss, Bush will not make a needlessly
provocative appointment. No Janice Rogers Brown. No Miguel Estrada.
No Robert Bork, as some have puckishly suggested. He will nominate
someone new, who has not yet been in the public spotlight. He will
make sure of no Linda Chavez slipups. As William Kristol has
suggested, Bush will appoint someone personally attractive, because
of the need for sympathy in the bruising confirmation fight which
will inevitably follow.
The conflict aversion, however, will have to come to an end.
Kenneth Starr told a meeting of the Massachusetts Family
Association that the way to make public officials do what you want
is to “Make them fear you.” So far, Bush has not made anybody,
Democrat or Republican, fear him.
If he can make his own Senate caucus fear him, he’ll make the
appointment he — and we — want.
I will also make a dark horse pick here, though the man is over
60, a supposed disqualifier. Ted Olson. Bush loves a surprise.
