There has been a recurring theme in the coverage of Sandra Day O'Connor's resignation from the Supreme Court: As Doug Jehl put it in Saturday's New York Times, "The moment presents George W. Bush with an opportunity to define at last, more than four years into his presidency, whether he is a pragmatic, flexible conservative, as he has portrayed himself in two campaigns, or a more ideological one, determined to move the court much further rightward."
You'll have to excuse if we think that moment passed a very long time ago. The candidate who said he admired Antonin Scalia and Clarence Thomas has become a president who nominated -- and, when the Senate didn't confirm them, renominated -- judges like Priscilla Owen, William Pryor and Janice Rogers Brown. On every issue that springs to mind -- the appointment of judges, yes, but also stem cell research, the Terri Schiavo case, marriage equality, family planning and abortion rights -- Bush has rejected the pragmatic and flexible in favor of the ideological rigidity that his supporters on the religious right expect.
Is there any reason to think that O'Connor's resignation will bring us a new Bush? A little, maybe. The 14 senators who signed off on the nuclear-averting compromise in May called on Bush to consult with senators on both sides of the aisle before nominating any Supreme Court justices, and a White House that isn't shy about announcing its own rights and prerogatives is offering at least lip service and window dressing in response. Shortly after O'Connor's resignation was made public Friday, Bush actually spent 14 minutes on the phone with Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee and not the kind of guy who's usually at the receiving end of an administration olive branch.
But there's a lot more reason to think that the Bush who appoints O'Connor's replacement will be the same Bush who thought it was so important to have Charles Pickering on the federal bench that he circumvented the Senate confirmation process and put him there through a recess appointment. Even if the president wanted to move to the middle -- and there's seldom been any evidence of that -- his base says it won't let him. The Christianists have teed up the issue just how they want it: If Bush nominates anyone who's insufficiently adamant where opposition to abortion rights is concerned -- an Alberto Gonzales, for example -- they'll view it as breaking the promise that he made as a candidate.
For Democrats -- well, you know you've got a problem when a Supreme Court nomination for a man who signed off on U.S. torture policies begins to look like a best-case scenario. Democrats can call on Bush to name a "mainstream" justice to the court, and Republicans say he will. But as Senate Judicary Committee Chairman Arlen Specter observed over the weekend, the "mainstream" is "very wide," and Bush and his supporters will stretch that term to mean whatever they want it to mean. Texas John Cornyn told the Times that he's confident that Bush will pick "a qualified, mainstream nominee"; we're pretty confident that Cornyn would describe every judge Bush has nominated so far in exactly the same way. A more revealing analysis comes from Cornyn's Republican colleague Jon Kyl, who says: "You know President Bush. You know the kind of person he is. You know the way he's approached personnel questions. He's going to be very straightforward about the kind of person he wants."
That's exactly what has so many progressives worried. Democrats can make the case that Bush should pick a judge a lot like the one he's replacing -- which is to say, a judge like the one Ronald Reagan picked when he picked O'Connor -- but it's ultimately Bush's decision to make. If you know Bush and you know "the kind of person" he is, you've got a pretty good idea of how he's going to handle it. The one upside for the Democrats? If the president tries to replace O'Connor with a hard-right extremist, swing voters and rank-and-file Republicans may finally begin to see what many of them seem to have missed so far: Bush may be the same Bush he's always been, but that doesn't make him Ronald Reagan.