The death last Saturday of Chief Justice William H. Rehnquist provides the latest example of how the Washington spin cycle operates and, more often than not, spreads confusion and misinformation.
Within hours of Rehnquist’s death, legal experts and various political wizards were on television trying to set the ground rules for future events. On Monday, after President Bush announced he would nominate John G. Roberts to replace Rehnquist, they really got busy.
Much of what has been said is demonstrable nonsense with no basis in law or history.
Democratic New York Sen. Charles Schumer, for example, claimed that now that Roberts has been nominated to be chief justice rather than associate justice of the court, he has a higher burden of proving his qualifications.
Apparently, in Schumer’s view, there is a presumption that a Bush nominee is unfit and the burden is on the nominee to prove otherwise. Historically, the opposite has been true. It has been the burden of opponents to prove the unfitness of the nominee, and in the process, persuade a majority of the U.S. Senate to vote against confirmation.
A number of other officials have used the occasion to claim that the president is under a positive obligation to “assure a balance on the court.” One television talking head actually said that Bush is now under an obligation to define what court balance he would attempt to achieve if he had nine court vacancies to fill.
This line of thinking is especially addled since it is obvious that the U.S. Constitution anticipates “balance” on the court will be achieved naturally as a succession of presidents appoint justices who are generally in agreement with them. It is assumed that over time, the court will reflect the will of the American people as expressed in their choice of president. The novel notion that a conservative president has some obligation to achieve a “balance” by nominating someone with whom he disagrees is simply silly.
It is equally silly to suggest that if Roberts is confirmed as chief justice, the next nomination to replace Sandra Day O’Connor must be a so-called judicial moderate.
If the president is serious about making the court more conservative (he campaigned twice on this issue), then he knows the second appointment to the court is every bit as important as the first. Arguably, it is even more important since Roberts would be replacing one of the court’s most conservative members. If the court is to shift to the right, it will be because of the second nomination.
Because of that fact, some of Roberts’ most vocal critics are insisting that he not be confirmed until Bush reveals the name of his second nominee. Under this line of thinking, it would presumably be entirely permissible to defeat Roberts out of dislike for someone else’s characteristics or qualifications.
People who advance this argument are obviously in a fevered state and need bed rest, medication, or both.
So, too, do the people who have argued that Bush must now nominate someone from the portion of the South damaged by Hurricane Katrina. The theory here is that since Bush has been the target of criticism over the handling of the hurricane, he can repair the political damage by rewarding this section of the country.
Were he to follow this advice, of course, he would be subjected to a new round of criticism for so transparently trying to manipulate public opinion.
All of this blather tends to overlook or minimize an issue that is important: how the court will operate once it convenes in October. One of the early cases to be heard is an assisted suicide case out of Oregon. The federal government is challenging the state’s assisted suicide law and this is clearly one of those matters that deserves a full nine-member panel.
It would make little sense for O’Connor to remain on the court to hear this case, since under court rules her vote wouldn’t count unless she was still on the court when the decision was announced months later.
The president knows this and has already said he will name a successor to O’Connor in a timely manner. What that most likely means is that Bush will again ignore his critics, will soon name a conservative replacement for O’Connor and let the spin machine spin on.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His columns appear on Wednesday.
