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Pining for Bork


Republicans, you’d think, would be celebrating over the Roberts-induced aphasia among Democrats—and many are. But on the rightmost flank of the GOP there are murmurs of discontent. From Capitol Hill have come blind quotes about Republican senators feeling “disappointment” in Roberts for being insufficiently (or too ambiguously) conservative. And from Evangelical outfits beyond the Beltway, such as Phyllis Schlafly’s Eagle Forum, have come less guarded declarations of concern that on key issues of judicial disposition, not least Roe v. Wade, he remains a cipher.

Not that any Republicans are going to turn on Roberts. But the pressure from the wackjob caucus is mounting to appoint a justice, as Bush pledged to, in the Thomas-Scalia mold—another Bork, that is.

If I were a Republican, I’d be tempted to say: Pity poor George W. Bush. His wife is telling him (and also telling reporters—she said it again last week to the AP) to nominate a woman. (And having ignored her once before, he must be loath to do it again.) The Democrats are telling him not to put forward any of the appeals-court judges whose nominations they previously filibustered. And his heart must be telling him to choose Alberto Gonzales, allowing Bush, as is his wont, to reward a friend, while appointing the court’s first Hispanic justice.

All these voices matter to Bush, but none matters more than that of Karl Rove. And it’s a fair bet that the advice he’s giving now is that Bush needs to satisfy the right. “What I’ve found is that when they’re in trouble they go to their base,” says Mark Gitenstein, a Democratic lawyer and Bork war veteran with long ties to Joe Biden. “In a perverse way, I think they’d actually like a fight to distract from all this shit in New Orleans.”

Indeed, if the nominee is also black or Hispanic, the choice might serve an additional strategic purpose in the aftermath of Katrina. “I think Rove would like nothing more than to put Democrats in the position of attacking a black or a Hispanic,” says another liberal strategist. “Republicans had been making real strides with those groups—until New Orleans, that is.”

The idea of a teetering second-term president, plagued by political ills at home and abroad, nominating to the court a screaming right-winger who’s sure to provoke a massive partisan battle—it seems crazy on its face. But it’s not unprecedented. Back in 1987, Ronald Reagan put forward Bork in the face of anemic poll numbers, the Iran-Contra affair, and an investigation by a special counsel of his trusted adviser Ed Meese. (Sound familiar?) “Their instincts were the same as this White House’s,” Gitenstein recalls. “To stoke up the true believers.”

Just below the surface, in the activist cadre of both parties, there’s a yearning for a knockdown, drag-out brawl.

For Reagan, the failure of the Bork nomination marked the end, for all practical purposes, of his administration. And the risks here might prove to be nearly as great. In the wake of Katrina, with Iraq a mess, and Social Security reform now a dead letter, Bush was already flirting with lame-duckism. The flameout of a Supreme Court nominee might be enough to send his second term careering into impotence.

Bush, however, is blessed with circumstances more forgiving than Reagan was. Most obviously, Republicans today control the Senate, which they didn’t then. The only way for Democrats now to block a nomination is by using the filibuster, though that might induce a countermeasure: the dreaded nuclear option, ending the use of filibusters for judicial nominees, that was debated and shelved this past spring. Indeed, one scare scenario currently making the Democratic rounds is that the White House might pursue what’s being referred to as the “sacrificial-lamb strategy”: Nominate one of the wingnuts’ favorites, such as appeals-court justices Priscilla Owen or Janice Rogers Brown, precisely to create a chain reaction that would lead to going nuclear. If the nominee got through, great. But if not, no big deal. The White House would then send up another far-rightist, on the assumption that Democrats would be unable to muster the energy or discipline to defeat two consecutive appointments.

Apocalyptic talk, for sure, but that’s what’s in the air these days in the nation’s capital. Bush’s election made it all but certain that, through his appointments to the court, he will shape the future law of the land as profoundly as any modern president. A truly frightening thought. But I can’t help but take some consolation in the prospect of what lies ahead. Since Bork’s collapse, Supreme Court nominations have devolved into a kind of Kabuki, in which intelligent and accomplished jurists strive to say nothing of interest—and the rest of us are left to puzzle over their performances for hints as to what they believe. As Bork has observed, it is a “broken process.”

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