September 6, 2005
Garrett Epps: Two court vacancies creates 3-crisis presidency
The death of Chief Justice William Rehnquist presents the Bush administration with three major crises at a time when the president’s popularity has never been lower. The question is whether President Bush can make a decision driven not by polls but by civic responsibility.
Bush’s response so far, hurriedly making John Roberts the nominee for chief justice, suggests that expediency and partisanship may still be in the saddle.
Two simultaneous vacancies on the court is always a crisis. A seven-member court is simply too small; add in temporary leadership (the 85-year-old Justice John Paul Stevens will serve as interim chief) and the uncertainty could hobble the entire judicial branch.
The last president to face the two-vacancy problem, Richard Nixon, tried to name two far-right conservatives, Clement Haynsworth and Harrold Carswell. These nominees’ failure left the administration so weakened that it had to turn to the moderate Lewis Powell and the nearly unknown William Rehnquist.
Rehnquist, an obscure young Justice Department bureaucrat whose name Nixon himself could not quite remember, was Nixon’s historic pick. The young justice known as “the lone ranger” for his solo dissents became an important influence on the court. After his elevation in 1986, he mastered the chief justice’s role so well that he will be remembered as one of the three or four most effective jurists ever to serve in that office.
The two greatest chiefs, of course, are John Marshall and Earl Warren. Both Marshall and Warren not only changed legal doctrine, they also unified the court. Rehnquist failed at that. He leaves an indelible mark on the law, but he also leaves a court that seems unable to order lunch without three vitriolic dissents.
In the nation at large, however, Rehnquist defended and strengthened the court’s prestige. When members of his own party began assaulting judicial independence, Rehnquist issued dignified but unmistakable rebukes.
Rehnquist’s accomplishments and failures make clear how high the stakes are for the court after his death. The chief justice needs national stature and credibility with his fellow justices, with lawyers and judges nationwide, and with Congress. John Roberts, a relatively young and obscure figure, does not seem like chief justice material. A senator who had decided to vote for him for associate justice might reasonably hesitate to make this inexperienced judge the head of the judicial branch. Beyond that, the transfiguration of Roberts suggests that Bush may be planning to name a polarizing figure for the second vacancy — a flamboyant young ideologue such as J. Michael Luttig of the Fourth Circuit or Janice Rogers Brown of the District of Columbia Circuit.
The aim of such a nomination would be nakedly partisan — to boost Bush’s standing among the extreme right wing of his party. But it would ill serve the nation and Constitution. And it would be dangerous for Bush.
Bush is no longer the 9/11 president, with the political standing to bulldoze both the Democrats and the moderates in his own party. Not quite a lame duck yet, he has begun limping. Republicans in Congress are stirring. The war in Iraq is unpopular at home and in danger of collapsing in the field. Bush’s inept response to the Gulf Coast disaster has badly marred his image as a leader. And, worst of all, he has little credibility left. Excuses such as “I don’t think anyone anticipated the breach of the levees” no longer even rise to the level of lies. No one takes them seriously.
What will this most stubborn of presidents do now with the Supreme Court crisis? As he watches the waters rise and his numbers sink, Bush should avoid creating a crisis within the crisis by taking the hard-line route for his second pick. A nominee with a significant record, an open mind and a demonstrated ability to bring warring judicial camps together would be a welcome gift to the nation and to the court. A nomination designed to taunt Democrats and use race or ethnicity as a partisan wedge would, in these circumstances, rise to the level of presidential malfeasance.
Bush and the “movement conservatives” seem to think of the court not as the jewel of the world’s oldest independent judiciary but as a symbol to be exploited for direct-mail fundraising. How Bush handles this crisis will help answer the question millions of Americans are now asking: Can he learn from experience?
Garrett Epps teaches First Amendment law at the University of Oregon School of Law.