WASHINGTON—Just hours before Chief Justice William Rehnquist announced Thursday night that he had no intention of retiring from the Supreme Court, four senators—all women—wrote a letter to Justice Sandra Day O'Connor urging her to remain on the court and be ready to ascend to the chief's post should Rehnquist decide to quit.
Never mind—just another illustration of the useless activity and rampant speculation that often consume the nation's capital as it anticipates a president selecting a Supreme Court nominee.
While the nation waits for President Bush to name a candidate to replace O'Connor, U.S. senators in particular are in a strange state of limbo, preparing for a potential conflict with neither side certain whom it'll be fighting about.
For the past week, senators—who will vote on the president's choice—have floated the names of their favorite potential nominees. Others have debated the proper line of questioning for a nominee during confirmation hearings. One took the unusual step of requesting an interview with Attorney General Alberto Gonzales, a frequently mentioned possibility for the court, just in case.
"They are particularly interested in trying to influence the outcome," said Michael Gerhardt, a law professor at the University of North Carolina-Chapel Hill. "They're trying to find some place for themselves in this debate."
The jostling is evident. Sen. Charles Schumer, D-N.Y., has been a nonstop proponent of grilling the still-to-be-named nominee about his or her views on issues that may come before the court, from environmental law to discrimination to abortion. Sen. John Cornyn, R-Texas, has been equally vocal to the contrary, arguing that nominees shouldn't be required to state positions on issues that may come before the court.
In the middle is a group of 14 senators—seven Democrats and seven Republicans—who are eager to set a tone of civility over the confirmation, urging Bush to consult with senators and even test some names with leaders of both parties before settling on a nominee.
"There seems to be a greater intensity of interest across the land," said Sen. John Warner, R-Va., comparing the fuss over filling this vacancy with others he's seen in his 27 years in the Senate.
No wonder. Of all the justices who could retire, O'Connor, as the court's resident swing vote, is the one whose absence could shift the court's jurisprudence in a new direction. Moreover, the court hasn't undergone a change in 11 years, one of the longest periods of court stability in U.S. history.
That means the selection of a justice is a new experience for many of those involved. This is Bush's first opportunity to leave his imprint on the court, and more than half of the Senate has never been through a Supreme Court confirmation. A majority of Republicans on the Senate Judiciary Committee, which approves the nominee before the full Senate votes, began serving after Stephen G. Breyer, the newest justice, joined the court in 1994.
Now news cycles are faster, politics is more partisan and interest groups on the right and left are richer, louder and feistier. Behind the scenes, liberals and conservatives are refining their strategies, trying to frame the upcoming debate and studying past confirmations like field generals poring over battle plans from the last war.
There are models from both extremes. President Herbert Hoover virtually bowed before the Senate in selecting Benjamin Cardozo in 1932 to succeed Oliver Wendell Holmes. The Senate confirmed his nomination unanimously. President Richard Nixon, on the other hand, ignored the Senate when he nominated Federal Judge G. Harrold Carswell to the court in 1970. The Senate rejected Carswell 51-45.
With Bush, several Democrats are looking for a middle course. Senate Democratic leader Harry Reid, D-Nev., said he wanted the president to run a few names past Senate leaders before settling on a nominee. Sen. Ben Nelson, D-Neb., a leader of the bipartisan "Gang of 14" moderates, agreed, saying "skepticism can be set aside if the president is talking to the appropriate people about some names."
"The president has to maintain a balance," said Gerhardt, who advised the Clinton White House during Breyer's confirmation. "At the same time, he has to understand that he's operating within a political context. Whatever he does has to succeed in the Senate. It would be foolhardy to ignore signals from the Senate."
Still, White House spokesman Scott McClellan has cautioned that Bush won't let the Senate "veto" potential nominees.
The Senate's most important role will come after a candidate is nominated. In the past, the style of questioning that senators pursued has depended on who's making the nomination. Sen. Edward Kennedy, D-Mass., argued against examining judicial philosophy when his fellow Democrat Clinton nominated associate justices. Now liberals such as Schumer argue that philosophy is an essential line of query.
Some conservatives, however, are in a quandary. Some anti-abortion activists have criticized Gonzales as having an equivocal record on abortion-related laws.
Sen. Sam Brownback, R-Kan., a staunch abortion opponent, last week requested a meeting with Gonzales, but said he'd ask only broad questions about Gonzales' view of the Constitution. When he was asked whether he'd question Gonzales about his views on the landmark Roe vs. Wade case, which established a woman's right to an abortion, Brownback said: "Not at this time."
Would he ask such a question if Gonzales were the nominee?
"I really couldn't answer that, really, at this point in time," Brownback replied.
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(c) 2005, Knight Ridder/Tribune Information Services.
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