The rumor mills in Washington are active and the natives are anticipating a knock-down, drag-out imbroglio, perhaps as early as this summer, of the sort that everybody officially deplores for the damage done to collegiality while privately relishing every blow.
Two Supreme Court justices might decide to resign, giving President Bush the opportunity to nominate their successors and triggering a confirmation battle that could make the public spectacles surrounding the nominations of Robert Bork and Clarence Thomas look like tea parties.
Then again, Chief Justice William Rehnquist, 78, and Justice Sandra Day O’Connor, 73, might not choose to retire and allow a Republican president to nominate their replacements. While the political world holds its breath (and assembles its ammunition), it might be helpful to take a longer view and consider why judicial nominations have become such political free-for-alls.
Few of the country’s founders expected Supreme Court nominations to be especially controversial. The court was to be the final place of appeal for federal cases, which in the first 150 years or so of our history were of tangential interest to most citizens. After Marbury vs. Madison in 1803 the court stood prepared to invalidate laws that in its view violated the Constitution, but it did so only sparingly.
Since President Roosevelt’s New Deal, however, the courts have become increasingly politicized. FDR was annoyed that the then-Supreme Court invalidated several New Deal programs, and in 1936 floated the idea of adding six new members to the panel of “nine old men.” The “court-packing” scheme backfired politically and was never enacted, but the high court soon switched its emphasis anyway and became friendlier to finding constitutional authority for broader authority for the national government.
As the courts became more important in ways that approached setting policy rather than merely interpreting the law, especially under Chief Justice Earl Warren, control of the courts became an increasingly political prize. The battle over President Reagan’s choice of Robert Bork in 1987 — eventually withdrawn — set off a firestorm of activism and exaggeration and set the tone for future nomination battles.
Everybody knows that in the wake of the razor-thin presidential race in 2000 and an almost even partisan split in the Senate, the battles over the president’s nominees to lower federal courts have been warm-ups for the real battle.
Senate Democrats have been nothing if not bold. They have used the fabled filibuster, which requires a supermajority to force a vote, to block judicial nominations. So far the Republicans have been unable to muster the 60 votes required to bring these nominations to a straight majority vote, which they would probably win. And some Democrats have vowed not to allow any Bush nominee for the high court to be confirmed until after the 2004 election, when they hope to oust the president.
Buckle your seat belts. It’s likely to be a bumpy ride.