Next Justice: A Disappointment

I don't have any inside sources at the White House, the Justice Department, or anywhere else who'd know the name of Justice O'Connor's replacement.

Those who are in the know agree on one thing: They don't want Alberto Gonzales nominated. But they've all got lists of five or 10 justices who'll fit the conservative bill: conservative here meaning, generally, a justice who'd apply the law and leave his own moral compass in his pocket.

I do know this, though: Odds are we conservatives will be disappointed, maybe not today, maybe not tomorrow, but soon and for the rest of the judge's life. For two reasons:

1. President Bush doesn't wake up each day thinking of ways to make America more officially conservative. He does, on the other hand, wake up thinking of ways to make America more Republican. There's a difference, and "conservative" at times ascends at the expense of "Republican."

Bush is first and foremost a party-builder. He constructed today's Republican Party in Texas from little more than ashes. And he's defied both conventional wisdom and experience in increasing Republican majorities in the House and Senate, and holding his own in state legislatures and governorships. Bush is interested in numbers, not penumbras.

How does Bush increase those numbers? By sending a message to the Court and conservatives with a nominee whose chief credential is originalism? Or with a Hispanic or African-American woman who has a decently conservative history? My guess is that he goes with the latter inclination.

2. The judge (or lawyer or politician or hairdresser) who's appointed will not turn out to be the justice we hope for. Not in every case, anyway. I don't know what it is about Justice Thomas that steers him so consistently to the text of the Constitution, but we're not likely to get another Clarence Thomas. Even if, at the time of his nomination, we think the new justice actually is another Clarence Thomas, we'll be lucky to get another O'Connor, someone who's been unpredictable but who hasn't really drifted left. If we're less lucky we'll get another Anthony Kennedy, who drifts left. And if our stars are way out of alignment, we'll get another Souter, for whom no drifting was necessary.

Want to temper both your disappointment and judicial drift? Endorse a constitutional amendment to involve the public in the retention of federal judges. Just sign your name on the petition at right.
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