A Case Where Nobody Wins?

Democrats clamor for consultation with President Bush before he fills a vacancy on the Supreme Court, while Republicans call for a new justice who will interpret the Constitution rather than read new rights into it.

Strictly speaking, neither side will be satisfied if that’s all they get.

Not the conservatives who drew two rebukes from Bush this week for their criticism of Attorney General Alberto Gonzales, a potential choice who would become the first Hispanic justice. His offense, from their point of view, includes a lawyerly observation that Roe v. Wade, the court’s landmark abortion rights case of 1973, is the “law of the land.”

And certainly not the Democrats, trying to define “consultation” as the selection of a “mainstream conservative,” or even a consensus candidate _ if one could be found.

Bush addressed both points last week within an hour or so of the announcement by Justice Sandra Day O’Connor that she would retire.

“I will continue to consult, as will my advisers, with members of the United States Senate,” the president said in remarks that seemed aimed in particular at Democrats.

Moments later, in what sounded like an attempt to reassure Republicans, he said he would consider candidates who “will faithfully interpret the Constitution and laws of our country.”

If contact amounts to consultation, Democrats are awash in it.

Bush dispatched White House counsel Harriet Miers to the Capitol to pay a courtesy call on Senate Democratic Leader Harry Reid of Nevada even before O’Connor announced her plans.

The president called Reid and Vermont Sen. Patrick Leahy, the top Democrat on the Judiciary Committee, the day O’Connor announced her retirement. White House Chief of Staff Andy Card has since called several Senate Democrats.

But phone calls and a bipartisan meeting at the White House aren’t going to cut it with the Democrats.

“I stand ready to work with President Bush to help him select a nominee to the Supreme Court who can unite Americans,” Leahy declared in mid-June, amid speculation that Chief Justice William Rehnquist would retire.

“To be meaningful, consultation should include who the president is really considering so we can give responsive and useful advice,” said Massachusetts Sen. Edward M. Kennedy, one of the Democrats on Card’s call list.

“As to whether or not there’s a knockdown, dragout fight on this is up to the president,” Reid said in Reno on Friday.

Liberal groups that customarily criticize Bush now try coaxing.

“Our effort is aimed at letting the White House know that there are millions and millions and millions of people who want him to use a process that produces a consensus nominee in the mold of Sandra Day O’Connor,” said Nancy Zirkin of the Leadership Conference on Civil Rights.

“She is conservative … at least is mindful of landmark decisions and settled law.”

Settled law, that is, that recognizes the right to an abortion, upholds affirmative action, maintains civil rights and generally preserves the status quo in other controversial areas where O’Connor often held the swing vote on a divided court.

That may the best that Democratic senators and their allies can hope for.

But leaving settled law alone is hardly what abortion opponents and other conservatives outside the Senate have in mind.

“The Republican base, which worked hard to elect President Bush twice, does not think the Supreme Court should be stuck in the mentality of the 1960s,” said Wendy Long, counsel to the conservative Judicial Confirmation Network.

In a statement, she cited a “sorry line of judicial rulings” that includes “prohibiting school prayer, allowing the burning of the American flag, mandating same-sex marriage, protecting virtual child pornography on the Internet, upholding discriminatory racial preferences, taking the words ‘under God’ out of the Pledge of Allegiance, striking down states modest restrictions on late-term abortions.”

Abortion, an issue that divides the country politically like no other, is a particular point of contention.

“It is critical that President Bush make it clear to the American public that nominating someone who will ‘faithfully interpret the Constitution’ means nominating a person who will oppose the Roe v. Wade decision, a decision which was clearly judicial activism at its worst,” said Rev. Patrick J. Mahoney of the Christian Defense Coalition.

The official advice to Republican senators is to avoid all such talk.

“America needs judges who will apply the law as written, not make the law to advance a personal political agenda,” reads a set of talking points distributed to GOP aides within hours of O’Connor’s announcement.

It adds: “Nobody should be playing politics with the justice system.”


David Espo is AP’s chief congressional correspondent.

© 2005 The Associated Press