Delayed Court Pick Unexpected
Bucking conventional wisdom, the Bush White House is taking its time in announcing its first Supreme Court nominee — so much time that, if the indecision lasts past Thursday, it will go down as the longest a Republican president has taken to announce a high court nomination since 1971.
Instead of making a decisive move to appoint a nominee within a day or two of the vacancy — as almost all of President Bush’s supporters had been predicting as recently as three weeks ago — Bush has led the selection process in a slow and deliberate manner.
He went to Europe and back, engaged in a lengthy consultation with the Senate and publicly discussed his criteria for a justice several times, including Saturday’s radio address.
Yet no nomination has come from the White House, prompting many GOP Senators to ruminate on the cause of the delay. The Senators offered a litany of potential explanations, ranging from shock that Justice Sandra Day O’Connor retired instead of Chief Justice William Rehnquist, to the fact that Bush himself might not have focused on making a selection until he actually had a retirement.
Regardless of the reason for the delay, Senate Republicans acknowledged in interviews last week their genuine surprise at the delay — and they suggested they were ready for the battle to begin.
“My general view is, you know this is coming — move quickly,” said Sen. George Allen (R), who said he advocated a quick-strike method in making judicial selections as Virginia’s governor in the 1990s.
“I wouldn’t want him to go faster than he feels comfortable with, but I do think we need to get this thing going,” said Sen. Jeff Sessions (R-Ala.), a Judiciary Committee member.
“All I know is that he’s taking a long time in his consultation process, which is good, but it does delay the nomination,” said Sen. Jon Kyl (R-Ariz.), a Judiciary member and the No. 4 ranking member of GOP leadership.
Other Republican leaders defended the process, contending that there was never a timetable for announcing the nominee and adding that a longer decision-making period would help thwart Democratic arguments that Bush didn’t consult them.
“I don’t know that there was any anticipated pace,” said Majority Whip Mitch McConnell (R-Ky.), adding that the likelihood of a Democratic filibuster has diminished the longer the process has taken. McConnell added that too many people, from Senators to outside interest groups, were just too anxious for the battle to begin, even though Bush is the only one who can really start that fight.
“The thing really starts when the nominee comes,” he said.
Still, Bush’s slow-moving selection process was unexpected in Republican quarters, coming after several years in which his allies predicted a speedy nomination, aided by conservative activists who were armed and ready to defend the nominee as soon as a name was released.
Progress for America, a “527” group that strongly backs Bush’s priorities, announced its $18 million Supreme Court campaign at a briefing on June 15, with top advisers all signaling they expected an immediate nomination following a vacancy.
So far, Bush has already taken a longer time to make his pick than the last seven Supreme Court nominees sent to the Hill by a Republican president. All were announced less than a week after the vacancy occurred.
The longest recent interval for Republican presidents between a vacancy and a nomination came in 1981, when it took President Reagan 19 days to nominate O’Connor. Bush has until the end of the month to beat the 29 days it took President Nixon to select Rehnquist for an associate justice position in 1971. That’s the longest it’s taken any GOP president in the past 34 years.
Of the two Democratic presidencies since then, Jimmy Carter did not make a nomination, while Bill Clinton made what is easily the slowest pick during that period. Clinton took nearly three months to nominate Justice Ruth Bader Ginsburg in 1993, though Democrats note that the late Justice Byron White retired just two months into Clinton’s first term — a period of vast indecision on many fronts.
Republicans now say that one of the leading causes of Bush’s slow decision is that O’Connor’s retirement flat-out stunned the White House. “Maybe he didn’t really anticipate Justice O’Connor stepping down,” said Sen. Rick Santorum (R-Pa.), suggesting that a “whole different” process was needed for the centrist O’Connor, as opposed to the conservative Rehnquist.
McConnell noted that in 1986, then-Chief Justice Warren Burger retired and on the same day, Reagan announced Rehnquist’s elevation and Justice Antonin Scalia’s nomination. “Clearly, Burger had given them the heads up, don’t you think?” McConnell said, adding that Bush got no such advance word from O’Connor. “It’s hard to believe the heads-up had been given with the current vacancy.”
Some observers noted privately that there was likely some hesitation in the White House to make a nomination for O’Connor when there was a lingering possibility of Rehnquist retiring — a possibility the chief justice quashed himself with a statement Thursday night.
Sen. John Cornyn (R-Texas) has speculated that the nomination would come at the end of July in order to shorten the timeframe that liberal activists have to attack the nomination. That schedule would leave enough time for requisite research and background checks while still making it possible to hold hearings on the nominee by early September.
Senior Democratic aides have concluded that’s the reasoning in the White House’s delay — creating a shortened window of attack that comes during the slow month of August.
But some Republicans said it would make little sense to sit on a nomination once a decision has been made, which is not Bush’s style anyway. “If you’ve made up your mind, there’s no reason to prolong it,” Allen said. “It appears he hasn’t made up his mind.”
Members of the so-called “Gang of 14” — the deal-brokers who short-circuited the effort by Majority Leader Bill Frist (R-Tenn.) to change procedures to end judicial filibusters — said that their deal has forced Bush into a longer consultation process
Sens. John Warner (R-Va.) and Robert Byrd (D-W.Va.) drafted a provision that urged more consultation in judicial selections, to head off a filibuster. “He’s taking his good time,” Warner said approvingly last week.
“He’s taken our suggestion to a very high level by reaching out more than anyone would have anticipated,” said Sen. Ben Nelson (Neb.), who led the Democrats in the Gang of 14.
Sessions added that Bush himself may never have focused on the potential nomination until it was forced by O’Connor’s decision. Sessions speculated that Bush had not done any work on it personally, even though his staff had. “He makes his own decisions,” Sessions said.