Though the winds of judicial selection are starting to blow, no one has yet invented some kind of Doppler radar to help predict such political weather patterns. In fact, those notoriously inaccurate evening news weathermen often have a better record than judicial selection analysts. Even so, it's worth trying to take a look ahead.
One confident prediction is that judicial nominations and confirmations will happen this year. The appointment average for new presidents in their first year is about half the overall annual average over the past two decades (25 vs. 49). The low point was in 1989 when the Democrat Senate confirmed just 15 of President George Bush's nominees. Yet President George W. Bush will soon begin sending his nominees to the Senate, which will confirm some of them.
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The pressure is building to do so. Nearly 100 positions on the federal bench stand vacant today and natural attrition produces a certain, if not steady, stream of new vacancies. The new administration has established a team and a process for selecting nominees to fill them. We so far know only how Mr. Bush has generally described the judicial legacy he intends to build: judges who interpret, rather than make, the law. The specific legacy will consist of his actual nominees. Suffice it to say that this year will certainly produce judicial selection activity.
Predictions about the Supreme Court are far more risky. Though it considers just 1 percent of the cases appealed to it each year, the highest court in the land remains the primary focus of attention for the media, interest groups and analysts. On April 19, Matt Drudge said the Bush administration "is planning for the possibility that two … Supreme Court justices may retire this summer." He said Justices John Paul Stevens, appointed in 1975 by President Gerald Ford, and Sandra Day O'Connor, appointed in 1981 by President Ronald Reagan, "are believed to be in a race to be first to step down from the bench."
Drudge never identified those who believe this, and the very next day Joan Biskupic wrote in USA Today that Justice Stevens "does not seem to be interested in leaving the bench." The day after that, the New York Times' front page reported that conservative and liberal interest groups "are busily preparing for the possibility of a Supreme court vacancy, perhaps as early as summer."
The court's current term is its seventh with the same slate of justices, the longest stretch without a new appointment since 1823. It would in any case be irresponsible for the Bush team never to speculate about possible scenarios, develop any contingency plans, or consider strategies for such an important event. Some vivid political facts mean Mr. Bush will need a strong backbone and a clear commitment to principle to appoint the kind of Justices he has identified.
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Democrats have always been more aggressive than Republicans in advancing their vision for the judiciary. This is no doubt because they depend on a politicized, activist judiciary to deliver much of their political agenda. After the narrow confirmation of Attorney General John Ashcroft, they announced they would oppose nominees not likely to decide cases to their liking.
This strategy of demanding judicial IOU's from nominees stands in stark contrast to what these same senators said when a Democrat president was sending them nominees. On March 17, 1998, for example, Senator Patrick Leahy, D-Vt., warned in a Senate floor speech against heading down "a road toward an ideological litmus test that does not well serve the Senate, the courts or the American people." On July 27, 2000, he told his colleagues that "we need to get away from rhetoric and litmus tests." Different day, different ox being gored.
Don't look for consistency here. Democrats imposing the same ideological litmus test they once condemned is a sure thing at the next Supreme Court vacancy. That this demand of nominees to violate their oath of impartiality before they take it directly assaults judicial independence is of no consequence. And groups once obsessed with defending judicial independence from even phantom threats -- from the American Bar Association and American Judicature Society to People for the American Way and Citizens for Independent Courts -- are totally silent.
Another political fact complicating the confirmation picture is that the Senate is not only split 50-50 between the parties, but a handful of Republicans are as liberal as most Democrats. Still, Senate Republicans in 1997 adopted a resolution condemning judicial activism, and Mr. Bush's nominees likely will represent a very different judicial philosophy.
Aggressive Democrats seeking a more political judiciary and an evenly divided Senate with several liberal Republicans make the next Supreme Court vacancy perhaps the most important domestic leadership opportunity for our new president. No matter what the liberal media say, most Americans would agree that they, and not unelected judges, should run the country and define the culture. "We the people" should once again mean something. If he ignores the speculators and would-be intimidators and promotes a judiciary that follows rather than fashions the law, Mr. Bush can truly establish a legacy of freedom.