The Second Battle First

In May, as the U.S. Senate thrashed about over presidential nominations to the federal judiciary and headed toward a potential meltdown on the question of barring the use of filibusters—a time-honored practice by which a minority of members can forestall votes they feel the majority is imposing on highly contested issues—in considering such nominations, it was widely noted that the battle was really an advance skirmish over a George W. Bush Supreme Court nomination.

It was also regularly mentioned that with the deteriorating health of Chief Justice William Rehnquist, about as reliable a Court ally as Bush has, his resignation was all but inevitable, his replacement by another conservative was likely to be a wash from the perspective of the Court’s balance and so it would be the second nomination to the Court, not the first, that would be the nasty fight.

Okay, so the nasty fight is apparently going to come first, not second.

As Arthur S. Leonard’s reporting in this week’s issue makes very clear, Sandra Day O’Connor—a relatively conservative jurist plucked by Pres. Ronald Reagan from the obscurity of the Arizona appellate courts—has proven to be a critical, even if not entirely consistent, ally of gay and lesbian civil rights advocates. The battle over her replacement is a key moment in the political life of the gay community.

But for those Americans sick and tired of the divisiveness sown by wealthy interest groups, some perverse delight was likely offered in the spectacle of so many lobbyists having to cancel their Fourth of July weekend plans late in the morning of Friday, July 1. Pressure groups, on the right and on the left, busily began to fire up the engines in their war rooms, while field commanders were trotted out of television stations’ green rooms. Both sides have promised to spend millions in this scorched-earth fight.

Perhaps the most surprising development to date has been the demonization of Attorney General Alberto Gonzales at the hands the Christian right moving quickly to forestall the possibility that the president might tap his longtime friend from Texas, viewed by conservatives as potentially untrustworthy on abortion and even same-sex marriage. Challenges to a Gonzales nomination had been expected from the left, concerned over his culpability as White House counsel during Bush’s first term in crafting guidelines on the handling of foreign detainees that many critics argue opened the door to the torture that came to light at Iraq’s Abu Ghraib prison two years ago.

Perhaps startled by the attacks on Gonzales and also by the possibility that right-wing groups will persuade the American public that the president is being strong-armed into appointing an extremist to the Court, the White House and its allies in Congress are already urging restraint—at least publicly—on the Christian forces descending on Washington. Interestingly, the White House this week first identified former Republican Party Chair Ed Gillespie, an abrasive man in anyone’s book, as its field commander in the upcoming confirmation process and the next day suggested the effort would be helmed by former Tennessee Sen. Fred Thompson, a more calming influence who is now is a regular on NBC’s “Law and Order.”

The possibility that the Christian right may already have overplayed its hand on this matter provides a useful lesson for progressive forces trying to block a dangerous jolt to the right on the Court.

Republicans have already done some market soundings and have learned that the American public wants to see a “dignified” confirmation process for any nominee Bush names. For the moment, progressive forces should look to the meeting slated for next week between the president and a bipartisan group from the Senate, including the majority and minority leaders, Bill Frist and Harry Reid, and the ranking members of the judiciary committee, Republican Arlen Specter and Democrat Patrick Leahy. Everyone in attendance at that meeting should share the same interest—in conveying the message that both the president and the Senate take seriously the legislative function of advice and consent—though one participant may not.

Should Bush disregard prudence and appoint somebody against whom the Democrats feel compelled to mount a filibuster, all bets are off on May’s grand compromise, and Frist could well have the votes to force an up-or-down vote on a nominee, notwithstanding the assurances of some Democrats, including New York’s Charles Schumer, that the Republican threat to use the nuclear option on judicial filibusters is permanently off the table.

Yet Frist is one of the few senators with a vested interest in maximizing conflict—he plans to enter the 2008 Republican primaries as the candidate of the Christian right and is eager to earn battle honors.

Other Republicans, and even Bush, who has shown a remarkable willingness to do the bidding of the Christian right, see a good measure of risk in further poisoning the political climate on Capitol Hill. The Beltway is already buzzing with talk of a lame duck presidency. A protracted and bloody battle over a Court nominee might only serve to further stall the president’s other policy pursuits.

So it is best for now that the Democrats approach Bush with sturdy and steely resolve—a genuine willingness to advise, with the unmistakable, even if implicit, threat that the cost of consent forced upon the nation’s minority party may be more than this president, with three years left in office, is willing to spend.