July 18, 2005
Monday

If President Bush has to find a Supreme Court nominee who will appease the religious right on the one hand and be confirmed by a majority of the Senate without a filibuster on the other, he's sunk.

There is no such person. Even the most obscure, Janus-faced among the possible court appointees could not thread that particular needle.

Thus, in the seminal event of his second term, the president would be doomed to failure and, due to the massive attention the battle will draw, to premature lame-duck status. The divisions that such a fight will kindle will rip the country's fragile political consensus apart, drive women into the arms of the Democratic Party for decades and destroy the Bush second term.

But if Bush has three jobs to give away -- two seats on the court and one as chief justice -- he can find a way to cut the Gordian knot. It's all up to Chief Justice William Rehnquist.

If Bush has to name a strong pro-lifer to hold his right-wing base intact - and has no offsetting appointment with which to balance it - he will widen the gender gap and virtually assure Hillary Clinton's election in 2008. The effect of a bruising battle where Bush lines up behind a pro-lifer will be the same on the single-female vote as Barry Goldwater's opposition to the 1964 Civil Rights Act was to black voters. A swing constituency became Democratic for life because Barry was one of only six Republican senators to vote against the bill.

But if Bush names a Souter, O'Connor or Stevens (all appointed by Republicans) to the court - and has no offsets - he will drive the base into rebellion and possibly fracture the Republican Party just when it appears on the verge of a permanent consolidation of its national strength.

The political consensus of this nation is divided, and that division can only be mirrored on the court if Bush has multiple seats to distribute.

To force this president, who barely mentioned abortion in either the campaigns of 2000 or of 2004, to make a choice as draconian as which one justice to put on the court is to invite a disaster.

If Rehnquist were not old and if he were not sick, the self-sacrifice of resignation would be unthinkable to ask. But let him stop kidding himself. He is too sick to sit on the Supreme Court and should resign. He can't participate in court sessions and only is able to vote through his clerks.

Recognizing reality is the ultimate repayment that I think he owes the political party that gave him the opportunity to sit on the high court as its chief justice in the first place. Even more, it is the obligation he owes the nation not to split it apart and enfeeble its president by forcing a litmus-test decision upon him.

With multiple choices for the court, Bush can appease the center and the right and, at the same time, make further inroads into the pivotal Hispanic vote by naming at least one Hispanic justice. But if Bush is forced to choose and comes down on the right-wing side of the dilemma, as he probably would, he will empower the feminists in the Democratic Party just as Clinton warms up for her presidential run.

If Rehnquist does not want the honor of raising his right hand to swear in Clinton as the 44th president of the United States, he should step aside now and give Bush a chance to find his way out of this political quandary with his presidency and party intact.

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