Memo to President Bush: As the Supreme Court
winds down its term in the next three weeks, your
administration better be ready. And NOT just, by the way, for
conservative revolt if the Court takes the unlikely step of ruling
against gun ownership rights (or punting the issue, as your
solicitor general's brief essentially suggested). No, what you
should be ready for is the unexpected, unlikely, but still very
possible chance that one of the justices could announce his/her
retirement at term's end. Nobody expects it, but that doesn't mean
our administration should sleepwalk, unprepared. Instead, you
should already have a nominee chosen and ready to go, with a battle
plan at the ready to take the initiative and define the nominee for
the public before the liberal smear campaign can even get off the
ground.
Now, why would a justice retire in an election year? Well,
specifically BECAUSE it is an election year. I can see Justice
Stephens, in his late 1980s, deciding that he wants to go out the
way he came in, under a Republican president...but with a twist. He
could consider it a bit of party loyalty to give a Republican a
chance to fill his spot, but by doing it in an election year he
could force the Republican president to take political fallout
particularly into acount and, in short, to make the court a fully
public issue rather than one just for Senate gamesmanship. If there
ever were a time when Stephens could go out without feat of being
replaced by a Scalia-like conservative, it is right now in this
election year with a Senate controlled (slightly) by Democrats.
Justice Souter might even have some of the same considerations.
He has long been rumored to long for his cabin in the New Hampshire
woods. Finally, although this is the most unlikely scenario,
Justice Ginsburg has had some health problems, and she looked a
little bit frail in a recent 60 Minutes interview concerning
Scalia.
If the White House is caught napping and a court position opens
up with your administration unprepared, you will ruin your last
great chance at a serious legacy. What is needed is a plan not just
to choose and announce your nominee, but a plan for countering the
predictable arguments from the Dems that the whole consideration of
the nominee ought to be put off until after the election. The
battle to insist on your prerogative to name the next justice (if
one steps down) could be the final serious battle of your
presidency. Please, President Bush, we are counting on you.
topics:
Supreme Court
