And so we begin again.
More than two months after Sandra Day O'Connor announced her retirement, we're waiting -- once again -- to learn who George W. Bush will nominate to replace her. It's not Bush's fault, of course: By moving John G. Roberts to the chief justice opening, the president, weakened by war and natural disaster, has simply chosen the path of least resistance and the route most likely to put a new chief justice on the bench by the time the Supreme Court's 2005 terms begins on Oct. 3.
But what happens next? We're seeing a lot of guesses but little intelligence into whom Bush might pick to replace O'Connor. Ted Kennedy wants more than a guess before he's forced to vote on the Roberts nomination. In this game of Supreme Court chicken, Kennedy says Bush should go first, announcing his pick to replace O'Connor before the Senate has to vote on his nominee to replace Rehnquist.
It's a reasonable suggestion, even if Senate Minority Leader Harry Reid seemed to distance himself from it Monday. Bush has had years to think about the judges he'll nominate to the Supreme Court, and White House officials have acknowledged that they had a process, if not a plan, in place even before Rehnquist died Saturday night. Some White House aides tell the Washington Post that Bush planned to nominate Roberts to the chief justice position even as he named him as O'Connor's replacement. Scott McClellan wouldn't go that far on the record Monday, but he came close: "This had been something in the back of the president's mind in case such a scenario came into being, if the chief justice had retired," he said.
We can understand why Bush wouldn't want to tip his hand on the second nomination before Roberts is confirmed. Polls show that roughly 50 percent of the American public thought Roberts should be confirmed as O'Connor's replacement. But if you ask Americans more generally about future justices -- say, whether they want a justice who will uphold Roe v. Wade -- it's clear that the country isn't all that interested in having the court turn sharply to the right. By sending up his nominees one at a time, Bush can keep the focus on the personal -- the kinds of people in contention for the job are invariably impressive in one way or another -- and away from the overall direction in which he's trying to move the court.
That's exactly what Kennedy is hoping to avoid. "We should know whom the president intends to propose," Kennedy said, because "the American people care deeply about the overall balance of their highest court and its dedication as an institution to the protection of their rights."
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