The Tipping Point?

By Richard Lacayo

Even in Washington, a city full of leaks, there are some secrets you can keep from the President. Last Thursday, when most of the city was focused on the possibility that Chief Justice William Rehnquist was about to resign from the Supreme Court, White House counsel Harriet Miers got a call from Pamela Talkin, head marshal at the Supreme Court, who told her that a sealed letter from the court would be delivered to the White House the next morning. Talkin did not say what would be in it. But Miers, like everyone else, knew that the resignation of a Justice was probably imminent. She relayed Talkin's message to the President and the Vice President, who were having their weekly lunch in the small dining room just off the Oval Office.

The next morning Miers called the marshal's office at the Supreme Court and was told Talkin was now authorized to reveal that the letter would concern Justice Sandra Day O'Connor. Miers eventually reached the President with the news. Not long after, with a White House photographer on hand to record the moment, George W. Bush placed a call to O'Connor. "I wish I was there to hug you," he told her. "For an old ranching girl, you turned out pretty good."

And full of surprises. For months partisans in Washington, and all around the country, have been gearing up for a fight over the next Supreme Court vacancy--just not quite the fight they got. Expectations that Rehnquist, 80, who is battling thyroid cancer, would step down have had constituencies on both left and right poised for battle. They have not had a high-court nomination to contend with since 1994, making this the longest the court has gone without any change in its membership since the 1820s. The less anticipated resignation of O'Connor, 75, abruptly raised the stakes. A contest over Rehnquist's successor would be pitched enough, but his departure would likely preserve the status quo. Rehnquist has been a consistent conservative vote on the court, and if he was succeeded by another firm conservative, the court's ideological balance would stay the same. O'Connor is another matter. For much of her 24 terms, she has been a critical swing vote on inflamed issues like abortion, affirmative action and church-state relations. If Bush can replace her with someone who doesn't know the meaning of the word swing, it would be an essential step toward realizing a decades-long conservative dream: a rock-solid majority on the court.

O'Connor's resignation came as a surprise but not a shock. There had been speculation for weeks that she might step down to spend more time with her husband John, who she has told friends is suffering from Alzheimer's disease. Once she announced her decision, activist groups who had been focused on the world-after-Rehnquist regeared for a higher-stakes battle over her crucial seat. Those groups have been readying their cell phones and BlackBerrys for years. In an atmosphere of already heightened political polarization, when the U.S. is divided over an increasingly unpopular war and led by a President whose approval ratings have been notching down for months, they are promising to spend record amounts to turn this into a long, hot summer.

Bush's eventual choice of a successor-- his first appointment to the high court--is sure to be one of the most closely watched decisions of his presidency, especially by conservatives and Christian groups determined to make sure he does not offer up another Republican nominee--like David Souter, Anthony Kennedy or for that matter O'Connor--whose votes are not consistently conservative. They want to hold Bush to his campaign promise to appoint a new Justice in the mold of Antonin Scalia and Clarence Thomas, the anchors of the court's right wing. In his choices for the lower federal courts, Bush has proved himself willing and determined to fill those benches with conservatives.

At the same time, the political appeal of making his Attorney General, Alberto Gonzales, the first Hispanic Justice may be enough to persuade Bush to push for that, even at the cost of disappointing conservative and Christian groups that fear Gonzales might not be a reliable vote against abortion rights. Because Gonzales is Hispanic, he would be a difficult candidate for Senate Democrats to oppose.

In a statement last week after O'Connor's announcement, Bush vowed not to name his choice until after he returns July 8 from his trip to the Group of Eight conference in Scotland. He called for a "dignified" confirmation process and said he would consult with Senate members on his pick. Last month 43 Senate Democrats signed a letter calling on Bush to consult with them before choosing a nominee. Democrats like to recall that in 1993, when their party controlled the Senate and Bill Clinton was preparing to fill a vacancy on the court, he called Utah Senator Orrin Hatch, the ranking Republican on the Senate Judiciary Committee, to get his views on who might make a suitable choice. Hatch urged Clinton to forgo one of his options, former Arizona Governor Bruce Babbitt, who Hatch thought would prove too hard to get confirmed. Instead Hatch promoted two others: Ruth Bader Ginsburg, who was eventually approved, and Stephen Breyer, who was appointed a year later. What conservatives tend to remember about that episode is that both Justices became stalwarts of the court's liberal wing.

If the ailing Rehnquist should also step down soon, it would embroil the President in a complicated set of choices. Would he push for two staunch conservatives? Or offer one hard-liner and one more moderate nominee as an inducement to Democrats to go easy on his more conservative pick? For Bush's conservative base, there is only one way to go. The court has long remained the branch that has thwarted conservatives' key goals, especially an abortion ban. Recent 5-4 decisions affirming the right of a locality to seize private property or forbidding the display of the Ten Commandments on government property--even if another ruling on the same day allowed such displays in a different context--only made it plainer to them, and to liberals too, how crucial the court remains. Says Tony Perkins of the Family Research Council, an influential group of social conservatives: "Clearly these issues are being decided by a slim majority."

For the activist groups that will carry the nomination fight to the public, the name of the game is hit early and often. Conservatives still remember their bitter and unsuccessful 1987 fight over Reagan's Supreme Court nominee Robert Bork, when they were caught off guard by Senator Edward Kennedy's lightning-fast characterization of Bork--within an hour of Bork's nomination--as a man who would create an America where "women would be forced into back-alley abortions [and] blacks would sit at segregated lunch counters." The label stuck and helped ensure Bork's defeat. For weeks Progress for America, a conservative coalition that has pledged to spend more than $13 million on television ads to support Bush's eventual nominee, has been running pre-emptive spots that show Senate minority leader Harry Reid calling Bush a "loser" and Democratic Party chairman Howard Dean saying that many Republicans "never made an honest living in their lives." It's all done in the hope of casting Democrats in advance as belligerent knuckleheads whose attacks on Bush's choice, whoever that turns out to be, can be dismissed. The group also plans to put out a TV spot in the first 48 hours after a nominee is picked.

Armies too are being mobilized. Jay Sekulow, chief counsel for the American Center for Law and Justice, a powerful conservative group based in Washington, plans to recruit Christian activists for the fight through his daily radio talk show, his weekly TV program and a massive database of followers. He will be telling people to flood Capitol Hill with telephone calls and messages of support for the President's nominee. Barely an hour after Bush announced the O'Connor resignation, Sekulow had sent an e-mail to 850,000 sympathetic souls. "We want people to prepare for a battle," he told TIME.

Another alliance of conservative groups, the Judicial Confirmation Network, is promising to spend about $3 million on television and radio ads to support Bush's choice. It is paying staff members in six states--Arkansas, Colorado, Florida, Maine, Nebraska and Virginia--to organize conservatives to contact their representatives in Congress and urge them to support Bush's eventual nominee. All those states but Maine went for Bush in 2004, and of those, all but Virginia and Maine have at least one Democratic Senator whom the group will try to characterize as out of step with his or her constituency. Progress for America has lined up conservative celebrities, including former Tennessee Senator Fred Thompson of Law and Order fame, to publicly endorse the nominee.

Meanwhile, liberal activist groups are not exactly sitting idle. At the Alliance for Justice, a Washington-based coalition of more than 70 organizations, staff members have been examining speeches, judicial opinions and background information on about 15 potential nominees. People for the American Way has a 2,500-sq.-ft. "war room" in Washington with 40 computer workstations and 75 phones to help its staff members stay in touch with local activists across the country. An e-mail with an embedded hyperlink flashed from the room to 400,000 people around the U.S. last week. "If Bush gives his base what they want, this nominee will be far to the right of O'Connor!!" it read. "CLICK HERE to donate $10 and sign up 10 friends for the likely battle!" Says Ralph Neas, the group's president: "For the past decade or so, this hasn't been the Rehnquist court; it's been the O'Connor court. She has been the decisive vote on scores of important constitutional decisions. Replacing such a conservative, mainstream justice with a right-wing ideologue would be constitutional catastrophe."

The mood on Capitol Hill, where the recent battle over filibusters did nothing to improve the atmosphere, is every bit as testy. Senate majority leader Bill Frist gave a speech last week warning Democrats that the so-called nuclear option--the proposal to change Senate rules to prevent filibusters of judicial nominees--remained an option if Democrats sought to block Bush's eventual choice. The Democrats, meanwhile, were doing some early saber rattling of their own. Within hours of O'Connor's resignation, Senator Kennedy called a press conference to warn that if Bush chose a nominee who "threatens to roll back the rights and freedoms of the American people, then the American people will insist that we oppose that nominee--and we intend to do so."

Bush's dilemma is complicated by the fact that conservative groups want the President to appoint somebody who has a clear conservative track record, which means the kind of paper trail that will give liberals plenty to go after. "The lesson learned is not to go with people whose history isn't verifiable. You could end up with a shocker that you have to live with for the next 20 years," says Kelly Shackelford, chief counsel for the conservative Liberty Legal Institute. Shackelford likes long-serving federal-district-court judges such as Emilio Garza of San Antonio, Texas, who has suggested he would overturn abortion rights, or Edith Jones of New Orleans, who has criticized Roe v. Wade. Plus, Shackelford says, because Garza would be the first Hispanic on the court, it would be tricky for Democrats to go after him.

But the Hispanic candidate who might be most attractive to Bush is one whom conservative activists are already signaling they will not accept. Attorney General Gonzales looks fishy to them on abortion because, while a judge on the Texas Supreme Court, he wrote an opinion that not only opened the way for a 17-year-old to have an abortion but also raised concerns generally about parental-notification laws. And he appears wobbly on affirmative action. Published accounts have suggested he toned down a Justice Department brief opposing racial preferences when the Bush Administration filed it in the landmark 2003 case involving affirmative action at the University of Michigan Law School. "There are a lot of pro-family, pro-life groups that would probably be quite unhappy if he were the pick," says Jan LaRue, chief counsel for Concerned Women for America. But in a piece two weeks ago in which he accurately predicted that O'Connor, not Rehnquist, would be the first to step down, Weekly Standard editor William Kristol, one of Washington's best-connected conservatives, also predicted that Bush would appoint Gonzales and might even choose to make him Rehnquist's successor as Chief Justice when Rehnquist retires.

No matter who the nominee turns out to be, Senate members are resigned to the fact that the court battle will consume most of their energy for months. "We'll go ahead with appropriations bills while the nomination goes through the vetting process," predicts Senator John McCain. "Some of the committees will still hold hearings and such, but as far as national attention goes, this is going to be at the center for some time." With his approval ratings in a slump, Bush might welcome an extended fight that puts him in a position to defend his list of values. Democrats too might want the confrontation, if only to help define who they are as they head into an election year. And no matter where you come down on abortion or church-state relations, who can disagree that fundamental values are involved? Americans approach these periodic shoutfests with a heavy heart, but there's no way certain showdowns can be avoided. In its next term, the court will decide cases that touch on some of the most vexed issues of the culture war, including assisted suicide--can doctors prescribe lethal doses of drugs to patients who request them?--and gay rights--can colleges that receive federal funds ban military recruiters because of the military's "Don't ask, don't tell" policy toward homosexuals? If that's what the fall has in store, then maybe there's no choice but to bring on the long, hot summer. --Reported by Perry Bacon Jr., Massimo Calabresi, Matthew Cooper, Viveca Novak, Amanda Ripley and Mark Thompson/ Washington and Cathy Booth Thomas/ Dallas

With reporting by Reported by Perry Bacon Jr., Massimo Calabresi, Matthew Cooper, Viveca Novak, Amanda Ripley, Mark Thompson/ Washington, Cathy Booth Thomas/ Dallas