A Kinder, Gentler Supreme Court?

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The U.S. Supreme Court building in Washington, D.C.

It was a yearlong battle cry from his fiercest opponents: If we elect him president, George W. Bush will pack the U.S. Supreme Court with reactionaries! The right wing will take over! Scalia will suddenly look like a moderate! Roe v. Wade is toast!

But if there is a silver lining for Democrats in the cloud that is Al Gore's loss, it is that just-concluded election virtually ensures that their worst nightmare will never find root in the reality of a Bush administration. Sure, this Court handed the election to Bush — but it also raised many an eyebrow among an anxious public: Do we want a judiciary whose political leanings are so defined, and carry such weight? The Bush White House will be very much aware of that skepticism, and that knowledge — combined with the specter of a full 50 percent of Americans who don't agree with their politics and a 50-50 Senate (the body that confirms Supreme Court justices) — is likely to open doors to appointees whose politics are decidedly centrist.

Finding a middle ground "The fracas could force Bush to appoint more moderate judges to fill any high court vacancies because of the opposition that more conservative nominees undoubtedly would generate in the Senate confirmation process," Allan Lichtman, presidential historian at American University in Washington, told the Los Angeles Times.

Let's say, for example, that the most likely scenario comes to pass, and Chief Justice Rehnquist or Associate Justice John Paul Stevens retires midway through Bush's first term: Where will a Bush administration look for replacements?

Desperately seeking centrists

Whomever Bush chooses to take over the empty seat, he or she is unlikely to be an Antonin Scalia or a Clarence Thomas or even a William Rehnquist. Instead, the chosen one will fit neatly into the Kennedy-O'Connor mold: Centrist, clear-headed consensus-builders who are more or less immune to politicization of issues. As Pepperdine University constitutional scholar Douglas Kmiec told the Associated Press, "They end up being the glue of the opinion," moderating the conservative camp and mollifying the moderate-to-liberal camp.

O'Connor, in particular, who could also retire during a Bush administration, is noted for her ability to side with the liberal-leaning Souter, Breyer, Ginsburg and Stevens on highly controversial issues like abortion while simultaneously maintaining one foot in the conservative camp, urging the right-of-center Justices to see their way to a compromise. And that's exactly the kind of presence GWB wants to perpetuate in the case of a vacancy.

Liberals shouldn't expect too much, of course. Bush may not turn out to be as generous as his father, who delivered an inadvertent slam-dunk to liberals in the form of Justice David Souter.