Washington — It would greatly disappoint the warring armies of interest groups in Washington, salivating for a fight over the next Supreme Court vacancy. But there is a way out of such a debilitating battle, with all its ominous implications for the independence and reputation of the judiciary, if key players at both ends of Pennsylvania Avenue are willing to show some flexibility.
The path around such a knock-down, drag-out fight has been opened by Democratic senators who have urged President Bush to "consult" with Capitol Hill before deciding his choice for the high court.
No one knows when there may be a vacancy to fill, but with the current term coming to an end, speculation is rife that Chief Justice William Rehnquist or Associate Justice Sandra Day O'Connor, both in their 70s, may be ready to retire.
In anticipation of that possibility, Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, has written to Bush urging him to engage "in meaningful consultation with members of the Senate, including those in the other (Democratic) party, before deciding on nominees."
Leahy's proposal was quickly endorsed by Senate Democratic Leader Tom Daschle, who wrote the president that "should you be willing to convene a meeting of Senate leaders from both parties to begin a bipartisan process of consultation ... we believe it is not necessary to have a divisive confirmation fight over a Supreme Court appointment."
The White House has given mixed signals in response to this overture a seeming brush-off from press secretary Ari Fleischer, followed by a more conciliatory but relatively noncommittal response from presidential counsel Alberto Gonzales.
The Republicans have reason for skepticism. Daschle and Leahy have organized filibusters against two Bush appointees to the circuit courts. Democratic presidential hopefuls John Kerry and Joseph Lieberman are threatening similar tactics against a Supreme Court choice they find objectionable.
But if Democrats are sincere, the door has not been closed to advance consultation. And one important Senate Republican, Judiciary Committee Chairman Orrin Hatch, has provided both precedent and endorsement for such a process.
Hatch wrote in his recent memoir, "Square Peg," that he had counseled President Clinton to avoid a nominee who would face "a tough political battle" for confirmation. What is more, Hatch said, he had, at Clinton's invitation, suggested both Stephen Breyer and Ruth Bader Ginsburg as people who could be easily confirmed the very people Clinton later named.
In a C-SPAN interview on June 17, Hatch repeated that "I was the one who recommended Breyer and Ginsburg to the president." And he lent his support to Leahy's suggestion.
Speaking of Bush, Hatch said: "I'm sure the president will discuss whoever he wants to put on the court with Senator Leahy and others as well that's just the way he is. He's a good man. I think it would be wise for him to do it, too."
But Hatch immediately added a disclaimer that suggests just how delicate this process may be. Referring to his Democratic colleagues, he said, "They want to pick the nominees. I don't blame them for that; it's just that's not the way the Constitution reads, that's not the way it should be implemented and frankly, no self-respecting president is going to say we'll let you pick them."
Leahy's friends insist that he is not trying to bend the Constitution or usurp Bush's powers. But one sentence in his June 11 letter to the president leaves open that interpretation: "I stand ready to work with you to help select a nominee or nominees to the Supreme Court behind which all Americans and all senators can unite."
The Constitution makes it explicit that it is the president "by and with the advice and consent of the Senate, (who) shall appoint ... judges of the Supreme Court." It is the president's power, not one he can share or delegate. But the word "advice" is significant, clearly suggesting discussion prior to the selection.
Fleischer, in a rather offhand manner, dismissed the discussion as "idle chit-chat," since no one knows when or if a vacancy will occur, and implied that the senators were suggesting "that the Constitution be altered."
The next day, after meeting with Leahy, Gonzales wrote the senator that Fleischer "did not foreclose the possibility that senators might be consulted."
Leahy has declined to discuss his meeting with Gonzales, clearly hoping to keep the tenuous talks going. It will be difficult. Conservative groups are putting heavy pressure on Bush to pick one of their favorites for the high court and liberal groups are at least as rabid to block any such nominee.
But the country -- and the court itself -- would be well served by the selection of a consensus candidate, and consultation is the obvious way to identify one.