Will Bush’s Legacy Be a ‘Bush Court’?

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When Jim Jeffords crossed the aisle to caucus with Senate Democrats in the spring of 2001, the defection was considered a body blow to President Bush. And as Benedict Arnold was made a British general for his treason to the American cause, Jeffords was rewarded with a committee chair for ratting on the party.

But it turns out Jeffords’ desertion was a godsend. For his vote gave Senate Democrats the single-vote majority they used to sabotage the Bush agenda, which caused their defeat on Nov. 5.

Majority Leader Tom Daschle derailed the Homeland Security Department to appease Big Labor. Pat Leahy, chairman of Judiciary, bottled up Bush’s court nominees. Two honorable and well-regarded appointees to the U.S. appellate court were not even accorded the decency of a floor vote. They never got out of Leahy’s committee.

But those same acts of obstruction allowed the president to go to the country and credibly claim that he was being sabotaged by a malevolent Senate. Hammering this theme, the president led the GOP to victory in 2002. Thus, today, because of Jeffords’ defection, Bush is thrice blessed. He is rid of the traitor, has re-won control of the Senate and has been given the mandate he never got in 2000.

But now that the celebrating is over, Republicans had best inspect what they won. For, while their margins in the House and Senate are as narrow as they can be, their responsibility is as wide as it can be. Republicans have no one else to blame should the economy go into the dumpster – or an invasion of Iraq leave the U.S. army battling Islamic jihadists from Baghdad to Basra.

The Democratic Party may be bereft of ideas, issues and charismatic candidates, but its field position for 2004 is perfect. Recall: Eisenhower, Nixon and Reagan all won the White House when Democrats controlled not only the presidency but both Houses of the Congress. It is thus time Mr. Bush began to think of his legacy.

For even should he win re-election, his authority and prestige will never be greater than today. And central to his legacy, as to that of every Republican president in the past 50 years, will be the Supreme Court he leaves behind.

Asked what were his greatest mistakes, Eisenhower replied: “Two of them are sitting up there on the Supreme Court.” Earl Warren, William Brennan and the Warren Court helped unleash the social revolution from which this country may never recover.

Nixon was determined to reshape the court. His nomination of Warren Burger as chief justice was hailed. But having failed to elevate two Southern jurists, Nixon listened to Burger and named his Minnesota friend, Judge Harry Blackmun, whose name will live in infamy for Roe vs. Wade. And while Nixon’s nomination of Lewis Powell proved disappointing, to his eternal credit he gave the nation William Rehnquist.

Had he not resigned in 1974, Nixon would have nominated a fifth justice. But that honor fell to Gerald Ford who blew it with John Paul Stevens, arguably the most reflexive liberal on the high court. After Stevens was easily confirmed by Senate Democrats, Ford declared him to be a model for future nominees, causing conservatives to plead with Ronald Reagan to challenge Ford for the GOP nomination.

Reagan’s record was superior. While the nomination of Sandra Day O’Connor was Big Tent politics, he elevated Rehnquist to chief justice, sent up Antonin Scalia and followed with Judge Robert Bork. When Bork went down to defeat, Reagan named Anthony Kennedy, who evolved into a moderate in the O’Connor mold.

The first President Bush named David Souter, who drifted over to the liberal bloc, and Clarence Thomas, who has proven to be one of the court’s most reliable constitutionalists.

Now comes George W. Bush’s turn. Eight years have elapsed since Clinton named Ruth Ginsberg and Stephen Breyer, and court vacancies are now imminent.

The nominations Bush makes will be crucial to his legacy. First, because the Supreme Court has become a judicial dictatorship and super-legislature that exerts far more control over our lives than either Congress or the president. Second, because the court is now balanced between liberal judicial activists (four), constitutionalists (three), and swing votes O’Connor and Kennedy.

Remodeling of the Supreme Court into the constitutional body the Framers intended is the legacy that now beckons Mr. Bush. But if he wishes to end the Supreme Court’s reign as a rogue judiciary, he will have to fight not just Democrats, but the whole phalanx of the American Left. Does he know how important his first nominees are – both to the nation, and to how history will remember him?

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