Get Ready to Rumble!

George W. Bush now has his chance.

Sandra Day O'Connor has announced that she is retiring from the Supreme Court after 24 terms. She made it clear, however, in a subtle but significant statement, that she will stay on the court until her successor is confirmed by the Senate. This means that there will be no 4-4 ties on the court while the nominee is being confirmed. The Senate (and the Judiciary Committee in particular) can take its time.

This is the moment that progressives have been both dreading and gearing up for ever since the 2000 election. While people had been expecting Chief Justice Rehnquist, who has been battling cancer, to step down after this term, that possibility was seen as a wash by progressives. If Rehnquist leaves, you lose a conservative vote and you gain one back: no big deal. But O'Connor is the crucial swing vote on this court. Over 100 times in 5-4 decisions, it was O'Connor who cast the deciding vote. This is the most significant Supreme Court nomination of the past 20 years. And it's going to be made by George W. Bush.

(For the record, I would like all the people who voted for Ralph Nader in 2000 to read that last sentence and consider it carefully. If any of them decide to slash their throats as a result, I won't stop them.)

Who will Bush pick to replace O'Connor? Not long ago, in this very blog, I wrote the following:

"Knowing George Bush, and his penchant for getting his way no matter what the cost, I think it's a pretty good possibility that Priscilla Owen might end up being nominated for the Supreme Court if an opening turns up in the next few years. Maybe not to replace Rehnquist, but if Sandra Day O'Connor retires, I'd bet money that Bush nominates Owen to rake her place."

At the moment, however, I think that the timing may not be on Owen's side. It's been far too soon since she won confirmation to the federal bench for her to get such a promotion, so for Bush to appoint her to O'Connor's seat might be even more than he's willing to do. On the other hand, I wouldn't bet against it.

What you can bet on is that Bush will try to ram a hard-right ideologue in the mold of Antonin Scalia onto the court, and that he will not be persuaded by anyone to pick a moderate. While it's true that Bush can't run for president again, the extreme right-wing Bible-thumping Christian fanatics who constitute Bush's most vociferous supporters have been waiting for this chance for years. They want Roe v. Wade overturned – and they think that this nominee will be the person to finally help them do it. If Bush doesn't nominate a Scalia-esque ideologue, all hell will break loose on the right.

The left has been gearing up for this fight as well, and the bitter recent battle over the so-called "nuclear option" was just a prelude for what's about to happen. They are going to throw in everything but the kitchen sink to prevent Bush from putting another far-right judge on the court. This could be a long, protracted battle, and I rather doubt that it will be over by the first week in October, when the Supreme Court begins its next term.

Isn't it a good thing, then, that Justice O'Connor will be there to fill in until her successor is confirmed? Because, from the way both sides are gearing up, that could mean that O'Connor could remain on the court until hell freezes over.

Tom Moran