Senate girds for battle over Supreme Court choice

So the spectacle has begun: the rhetoric, the lobbying, the innuendo, the maneuvering, the claims and counterclaims, the punches and counterpunches.

Sandra Day O’Connor’s resignation announcement from the Supreme Court is but 10 days old and already the battle is at full fury.

But nowhere is it raging more furiously than on the Right. The Left is united (its members hate the new nominee, name to be supplied perhaps as early as this week, and they already believe that President Bush’s selection is an unredeemable extremist). The Right is another story.

In fact, it is the story of our time, little noted, little appreciated, but now impossible to ignore: There is no grand Right-wing conspiracy. There are as many factions on the Right as there are on the Left, and in the past several days the various strains of conservatism have been on full display.

These strains are causing quite a strain on the White House, and on President Bush personally. He’s famously loyal to his friends, and Atty. Gen. Alberto Gonzales is one of those friends. Gonzales apparently is a contender for the O’Connor seat, and the attacks from the Right on Gonzales haven’t gone down well with the president, who told USA Today: “I’m the kind of person, when a friend gets attacked, I don’t like it.”

The president may still nominate Gonzales to the high court, and the war against the attorney general may actually redound to his benefit, making him less terrifying to the Left merely by virtue of being less appealing to the Right. Politics works in strange ways.

But the important thing to note at this juncture is that there are different Rights, vastly different ones. Some on the Right care just about economic issues, and not very much about others on the Right who are determined to find a justice who will vote to overturn Roe v. Wade, the 1973 decision that created abortion rights. But everybody on the Right noticed that the biggest applause lines in the 2004 campaign involved judges and courts.

There’s a reason for this, and it’s not (despite the claims of economic conservatives) on the supply side. This is strictly a demand-side equation.

There’s a lot of demand – terribly pent-up demand – on the Right to right the court. Marketplace issues, regulation questions, social policy – they’re all in play in American life, and the court is the nation’s ultimate arbiter. This is, as political earthquakes go, the big one.

Another reason: The sphere of influence of the courts has grown substantially since the last Supreme Court selections by a Republican president – George H.W. Bush’s nomination of David Souter in 1990 and Clarence Thomas in 1991.

“The conservatives are concerned that the courts have proscribed areas where the public and legislatures can no longer legislate,” Sen. Rick Santorum, the Pennsylvania Republican, said in an interview last week. “They see their rights to affect the country as being diminished. They feel their country’s being pulled away from them.”

This frustration has boiled over, and the delicious prospect of having a new voice on the court, where a lot of those issues are being decided, has put the entire conservative movement in a froth.

But high court politics are high-risk politics. Examine the roster of the current court and you will see that the perpetrators of this so-called Left-leaning institution do not have a pink provenance. Seven of the nine members of the current court were appointed by Republicans.

That’s not the whole story, however. Seven of the nine were confirmed by Senates controlled by Democrats, and that might make more than a subtle difference; Presidents Nixon, Ford, George H.W. Bush and (in the case with Anthony M. Kennedy but not O’Connor and Antonin Scalia) Reagan sent their successful nominees to a Democratic Senate for confirmation. You choose differently when your destiny is going to be determined by your rivals than you might if you are to be merely to be evaluated by your friends.

President George W. Bush has few constraints on his choice. The Senate is in Republican control and the filibuster has been at least partly defanged, so he has enormous flexibility – a fact that the various factions on the Right understand, which is why they are lobbying so ferociously to get their way (and their voice) on the court.

Each Supreme Court nomination has its own flavor and creates its own fervor.

The president is involved in a long, bloody fight over John R. Bolton, his selection for the chief delegate to the United Nations, and it is clear that he has little taste for another fight that will be long or bloody. Nor does Santorum’s senior colleague from Pennsylvania, Arlen Specter, who prizes probity but exudes efficiency.

Specter is the chairman of the Senate Judiciary Committee. This is his 10th confirmation battle of a public life that, quite unpredictably and cruelly, now includes a public battle against cancer. He wants to do this right – but also briskly and crisply.

This early phase of the Supreme Court battle – the phase where the combatants are engaged but the nominee isn’t yet chosen – won’t go on much longer. The president doesn’t like spectacles, and the White House isn’t going to tolerate a political world swirling with controversy, especially when most of the fighting involves one set of its allies (the economic conservatives) taking on another set of its allies (social conservatives).

Before long, the president will announce his choice, and the entire physics of the fight will change.

The conservatives almost certainly will line up behind the president’s choice, even if it is Gonzales. The liberals will line up against that choice. It will look like a confrontation between two implacable, united foes. When it does, and when August gets really hot, remember that it wasn’t always this way.