It's not a good idea to start stacking the federal bench.
It's not difficult to understand, given President George W. Bush's tanking poll numbers and the defection of even his staunchest supporters, why he's again pantomiming at packing the federal judiciary. That's why Karl Rove promised conservative activists last week that the White House was now planning to ferry along almost two dozen new judicial nominations. It's also why you're again hearing talk of the "nuclear option," long after most sane people acknowledged that it's an extreme solution to a relatively minor problem.
What we're witnessing now are the early signs of flirtation that will lead the president to an inevitable embrace of his conservative base. And they have a message for him, too: Get naked now.
Social conservatives are increasingly furious that Bush's war and his tax cuts have taken priority over his campaign promises to remake the federal bench. These groups don't much care about the president; they just think the next few months may be their last chance to cram a huge boatload of nut jobs into the courts before the doors to the White House and Congress slam shut.
Surely the White House has learned this one thing from the Harriet Miers fiasco: You cannot mollify wary social conservatives with a middle-of-the-road nominee. The last time the Bush administration tried that stunt, they pulled back a charred lump of Harriet. So, what's wrong with the administration's early gestures toward starting a war over the judiciary? For one thing, they can't possibly deliver what they've promised. For another, it's suddenly a buyer's market, and the groups to which they are pandering no longer want what the White House is selling. They want better goods: more hard core, more red meat. Less pandering to sex, race, and big business, and more pandering to ideological purity.
Yesterday, Bill Frist got an earful from Concerned Women for America and the Third Branch Conference—two conservative interest groups that don't think the president is reshaping the federal courts fast enough to realign the entire legal landscape by midterm elections. These groups want the president to launch a full-scale feud over his judicial appointments, inviting a filibuster from Democrats, which can then be answered by (be still my heart) the so-called nuclear option. Once the nuclear button has been pressed, they figure, it'll be a clear shot for even their craziest wing nuts to the bench.
The reason social conservatives are so desperate about stacking the federal bench now is because they want instant action on issues like gay marriage, abortion, and school prayer; issues on which the White House has not yet performed, and cannot possibly perform, by November. But the Bush administration should think carefully before launching this war. Because it will never, ever be able to give these groups what they want. (Something the Bushies should already know from the absolutist resistance they're getting on immigration reform). They will fail in the attempt to suck up, and that will alienate this group come election time.
The inevitable breakdown will occur when the people Bush names are measured against his constituent group's expectations. There is just too much yardage between Bush's promises to stack the courts with folks who'll promote that singular values-based agenda, and the actual performance of the people he puts there. For one thing, the president has no idea what even his most loyal judicial monkeys may do in the future—so even in the best of circumstances, he can't give his supporters the kind of certainty they want. And for another thing, while these groups may be clamoring for action now, the legal system doesn't recognize the words "right now," even under the best of circumstances. The rulings they will make on these crucial issues are years, and maybe even decades, away.
These uncertainties explain why Bush's nominees are getting such a thorough going-over, and also why these interest groups cannot be placated. The number of key conservatives either boycotting White House dialogues on judges, or openly issuing threats in the pages of major newspapers, almost exceeds the numbers of groups onboard with the president's choices. Giddy at having taken Harriet Miers out of the running for a Supreme Court seat, conservative groups no longer need to trust Bush's judicial picks. They want to seat their own.
And these groups don't want moderates, or minimalists, or mere callers of "balls and strikes." If, as they say, they represent the "values voters," they want only fire-breathing Roy Moore types who will reflexively strike down gay-rights legislation, ban abortion outright, and reinstate public prayer. And those folks may not be the Bush administration's dream judges on the issues it cares about most: the war on terror and the interests of big business.
So, the administration tries to work the margins and please everyone. Brett Kavanaugh, Bush's nominee to the Court of Appeals for the D.C. Circuit, will be confirmed soon. He has, in his brief legal career, shown Miers-like devotion to the president (thankfully without the puffy hearts in his holiday cards), but, like Miers, he hasn't quite won over the hearts and minds of the far right. They are more interested in confirming Judge Terrence Boyle to the Fourth Circuit—despite pesky recent allegations that Boyle saw fit to buy stock in General Electric while presiding over a case in which GE was a party. (GE won.)
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Brett Kavanaugh by Chris Maddaloni/Roll Call Photos.