Streetcar Line

Supreme Dream

What if there's an opening?

By 6.13.07

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So let's imagine, for the fun of it, that when the Supreme Court closes its term in a few weeks, one justice stands up to read aloud parts of a strong dissenting opinion in an eagerly awaited, 5-4 decision. Once he finishes his comments on the case, though, he asks leave to change the subject. Then, to the amazement of everybody in the courtroom and indeed of almost everybody in the United States, the justice announces that he is retiring from the high court, effective immediately.

And thus, by fulfilling his desire to return to his cabin in the woods, does Justice David Souter begin the biggest, most closely fought Senate battle of the entire Bush 43 presidency.

What would happen? What would President Bush do? What would conservatives do? What would the general public think?

It's not out of the realm of reason.

Consider that Souter has never been known to particularly enjoy the grind and the spotlight of the Supreme Court. And consider that Souter was appointed by Bush's father, and that he might reason it would be fitting to retire under a presidency not just of the same party, but of the same blood -- but with an important twist. From the standpoint of a liberal such as Souter has proved to be, this would be a propitious time, because the current Bush is at almost unprecedented levels of unpopularity, meaning that he will be in the weakest position possible to replace Souter with a solidly conservative nominee.

At this point, Souter might reason, Bush will be all but forced to nominate somebody who is seen as a moderate consensus-builder, somebody who won't make waves...in short, somebody who is very much like the image Souter thinks he sees in his own mirror.

This might be what Souter would want. But it's not what Bush should do. Instead, Bush ought to pick a fight. He ought not only to try to shore up his base, but also to attract the American center again -- and he can do it with the same nominee. How? Because, properly framed, the battle over judges is one in which the American middle will agree with the American right.

Middle America does not like judges who ignore the Constitution in order to let private property be seized for the use of other, bigger, private interests. Middle America does not believe that partial birth abortion is a constitutional right. Middle America does not believe in absolute hostility to religion in the public square. Middle America does not believe (on an issue more symbolic than substantive) that the Constitution forbids the words "under God" to be included in the Pledge of Allegiance. Nor does Middle America believe in racial preferences, overly intrusive regulatory power at home and at the office, or any number of other results put into effect by the courts in the past several decades.

A conservative nominee, without deliberately trying to reach these particular results, would almost certainly be on the same side as Middle America on all of these issues just by virtue of hewing closely to the original understanding of the Constitution, its amendments, and the various statutes on which he might be asked to rule.

It is known, meanwhile, that Bush is determined to use his next choice (if he gets one) for a woman or an ethnic minority. Such a determination, in this case, also will help politically. As long as a female or, say, Hispanic nominee is well qualified and has an unthreatening demeanor, she or he will be difficult for moderate Democrats (and Republicans, for that matter) to oppose.

ABC's superbly knowledgeable Jan Crawford Greenburg recently reported that the White House short list for any potential opening includes federal appeals court judges Priscilla Owen, Janice Rogers Brown, Diane Sykes, and Edith Brown (Joy) Clement, federal district court judge Loretta Preska of New York, and Florida Supreme Court judge Raoul Cantero.

Some of those, in particular, look like fine choices to me. I have written at least a few good things about the first four in the past. But here's one other name the White House ought to add to its list: Alice Batchelder of the U.S. Sixth Circuit Court of Appeals. She reportedly was once on at least the medium-short list before, when Sandra Day O'Connor and William Rehnquist both retired.

A solid conservative, but utterly unthreatening in demeanor and boasting a great middle-American background (do read the linked piece, above), Judge Batchelder would help Republicans rally from huge setbacks in the key state of Ohio while presenting a terrific example with whom a majority of Americans could empathize and whom a clear majority would admire.

And the two political disadvantages earlier tallied against her could this time turn out to be a plus. First is her age: She'll be 63 in August. President Bush has previously wanted younger nominees who would presumably carry on his legacy on the bench for far longer after he leaves office. But at 63, she still is young enough to serve beyond any two Democratic terms that might follow Bush, which might -- in Bush's weakened political state -- be the best Bush could hope for.

Yet at 63, she also would be more palatable to moderate Democrats than the other potential nominees, all of whom are significantly younger and thus would presumably serve even longer terms. In other words, the Democrats might figure that if they don't approve Batchelder, they will only be confronted with yet another nominee who is both politically attractive and more likely to spend a longer time blocking their (the Democrats') liberal aims.

The second political disadvantage is a very minor, utterly inadvertent ethical glitch that came to light a full eight years ago. As has happened with many other top judges, she did not recuse herself on some cases involving a company in which her spouse held stock. In her case, it was her husband's retirement account that, among a number of other securities, owned stock in the company at issue.

With the bloodlust of the left at play, the minor apparent conflict of interest would immediately attract most of the focus of the Bush opponents and the media. Fine. It's a proverbial briar patch. Let the left throw her there and waste all their venom trying to make her suffer from it. The truth is that the example is old and minor. As ABC's Greenburg wrote in her recent book on recent court battles, Supreme Conflict, "Scores of judges, unaware of stocks in a fund or portfolio, had encountered similar problems over the years." The truth will out, and if the Democrats try to push this bogus issue too hard against a woman who palpably exudes integrity, they might engender a public backlash against themselves.

A battle over Batchelder is a battle Bush, and conservatives, can win.

Now if only Justice Souter will cooperate....

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About the Author
Quin Hillyer is a senior editor of The American Spectator and a senior fellow at the Center for Individual Freedom. Follow him on Twitter @QuinHillyer.