As I said earlier, I hope that any Supreme Court appointments that come up in Bush’s second term will be handled by negotiation. For example, the Senate, President and Supreme Court could agree that four SC justices are going to resign en masse; that their replacements will be two conservative Republicans, one moderate Republican (picked by Olympia Snowe, for example) and one Democrat of the Democrats’ choosing; and that there would be no filibuster of the confirmation vote. That’s what I would do if I were in control of the confirmation process and wanted to do what was best for the country.
But a nasty thought occurred to me this morning.
If I were a Republican strategist seeking the best possible outcome for the Republican party, I would be aiming to destroy the filibuster privilege in the Senate.
I would do that by forcing the Senate Democrats to start out the next session by filibustering a Supreme Court nominee and preventing any other Senate business until the vote is called and the nominee confirmed. I would have the Republicans in the Senate call this issue before any other nomination, so that the offices of Secretary of State and (possibly) Secretary of Defense are sitting vacant while the Democrats filibuster the Supreme Court nominee and their continued vacancy can be blamed on the Democrats. They could say: “The Democrats in the Senate don’t really care about the war on terror or our foreign policy. Look, they’re holding up the entire government trying to force the President to appoint liberal judges!”
And in order to bring even more pressure on the Democrats to confirm the nominee, the President could make a recess appointment* to the Supreme Court. The recess appointee would have to be conservative to maintain the 5-4 conservative majority, ideally very conservative. It would have to be someone willing to sacrifice any future political or judicial career for a less-than-one-year term of service.
Somebody like soon-to-be-former Attorney General John Ashcroft. Chief Justice John Ashcroft? Compared to Ashcroft, Bork would look positively liberal.
We may know quite soon if something like this is planned. The Chief Justice would probably be the one to resign, during the Christmas 2004 recess. Bush would name his nominee immediately and appoint his recess nominee just before the new Congress is convened and the filibuster would start more or less immediately.
But it wouldn’t have to be this year. Assuming Rhenquist and the other justices who want to retire can hold out for one more year, there would be a year to test the waters and try to work with the Democrats. This recess appointment strategy would work just as well in 2006 as in 2005. The only pressure is to get it done before the 2006 elections when the Democrats might gain more seats in the Senate.
Let me make it clear that I would be opposed to this strategy. It would be profoundly unconservative to appoint a recess nominee to the Supreme Court, and especially to appoint a non-Supreme Court, non-Appeals Court justice to the Chief Justice’s position. (Although the pressure would be just as strong if Scalia or (stronger) Thomas were appointed acting Chief justice and Ashcroft or whoever were recess appointed as an Associate Justice.) It would also be unconservative to dismantle the filibuster rule after over 200 years. For those and other reasons, I think the strategy I outline above would be bad for the country as a whole.
* I’m not sure that the President’s recess appointment power extends to the Supreme Court. If not, this whole house of cards scenario comes crashing down.