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.