Bush's plan for the Supreme Court

Chief Justice William Rehnquist hasn't retired yet. Did somebody forget to tell the president?

By Tim Grieve
Published June 1, 2005 3:28PM (EDT)

How close is the retirement of William Rehnquist? To hear George W. Bush talk, you'd think that the chief justice has already submitted his resignation papers.

When Bush was asked at his press conference yesterday to describe the process he'll use to pick a Supreme Court nominee, he didn't engage in the usual admonitions of courtesy. He didn't say that it was premature to talk of such things or that he'd have to wait to see if anybody retired on his watch. He talked like a man who knew that the decision was upon him.

"Here's my process," the president said. Then he explained that he's going to "spend a lot of time reviewing the records of a variety of people and looking at their opinions and their character," and that he'll "consult with members of the United States Senate at the appropriate time."

Maybe we're just a little too cynical, but we're betting that "at the appropriate time" means "right after I've made my nomination." When the "gang of 14" struck their deal to avert the nuclear option last month, they included language in their agreement urging the president to consult with the Senate before sending up future nominees. "We believe that, under Article II, Section 2, of the United States Constitution, the word 'Advice' speaks to consultation between the Senate and the president with regard to the use of the president's power to make nominations," they wrote. "We encourage the executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration."

At his press conference yesterday, Bush said: "I know there's been a lot of talk about consultation between the White House and the Senate, and we do consult -- obviously, we consult on district judges -- and that we listen to their opinions on appellate judges -- 'their' opinions being the opinions from the home state senators, as well as others. I look forward to talking to members of the Senate about the Supreme Court process to get their opinions, as well, and will do so -- and will do so. But, obviously, it's -- I told the American people I would find people of a certain temperament that would serve on the bench, and I intend to do that, but we will consult with the Senate."

Bush was a little more clear -- but only a little -- when it came to the rest of the nuclear-averting agreement. "Now, in terms of whether that agreement means that a senator [sic] is going to get an up or down vote, I guess it was vague enough for people to interpret the agreement the way they want to interpret it," he said. "I'll put a best face on it, and that is that since they're moving forward with Judge Owen, for example, and others, that 'extraordinary circumstances' means just that -- really extraordinary. I don't know what that means."

It's hard dangerous to parse too carefully words from a man who can be so loose with them, but did Bush really say what he said? That because the Senate confirmed Priscilla Owen, the "extraordinary circumstances" justifying a filibuster must actually be some "really" extraordinary circumstances? Meaning what? That Owen is a judge so extreme that her nomination ought to considered at least garden-variety extraordinary? And that the carefully negotiated words "extraordinary circumstances" should now be read to mean "really extraordinary circumstances"?

Of course, Bush isn't the only one looking to reshape a vague agreement to suit his own purposes. In an interview with something called Right Wing News -- there's something to be said for truth in advertising! -- Kansas Sen. and likely presidential candidate Sam Brownback writes the agreement right out of the agreement. If Democrats filibuster any future nominee, Brownback says, Republicans will go immediately for the nuclear option. "At this point in time," Brownback says, "if they filibuster anybody, then we move right back into the same mode to move this to a 51 vote margin."

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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