Not long before the election of 2002, when the fate of the Senate hung in the balance, our colleague Jack Newfield argued that what the election was going to be about was federal judges. We thought Newfield, a shrewd observer, was right, though he had his own hopes for what the voters would decide. In the event, voters handed control of the Senate to the Republicans. And as the issue of judges grew even more heated, Americans, in 2004, not only reelected a Republican to nominate the judges but widened the Republican margin in the Senate yet again.

This is the context in which we tend to view the retirement of Justice O’ Connor and the fight up for which the country is gearing. Liberals are already clamoring for the president to nominate a “centrist” like Justice O’Connor herself. No less an authority than Senator Kennedy, writing in the Washington Post, pointed to Justice O’Connor as the model for the next justice. Quoth the senator from Chappaquiddick, “She has faithfully applied her own extraordinary life experiences, her broad knowledge of the law and her dedication to the Constitution to complex issues. She had no agenda except being the best possible judge.”

Yet for those very reasons, Justice O’Connor represents just the type of legal mind for President Bush to be wary of. All too often she has been the key swing vote because her jurisprudence has tended to lack a solid grounding in principle beyond an application of “her own extraordinary life experiences,” a problem that was evidenced in, say, her majority opinion in the landmark 2003 University of Michigan affirmative-action case Grutter v. Bollinger.

Justice O’Connor crafted an opinion upholding the consideration of race in admissions decisions at competitive institutions of higher education. Although she was willing to support some methods of considering race in the admissions process, she wasn’t able to explain clearly what the test would be when determining which methods were acceptable. As one scholar, Nancy Maveety, noted in Sunday’s Newsday, “the compromise hinges too much on her personal view of the facts; it cannot so easily be applied by another justice.”

This sort of jurisprudence by personal taste explains why the word “unpredictable” has often been used in the weekend’s coverage of Justice O’Connor’s legacy. But it can hardly be what the Founders had in mind when they created the Supreme Court. So her retirement provides an opportunity to return the Supreme Court to its constitutional moorings, a concept most clearly grasped among the current nine by Justice Scalia, for whom the president has often voiced admiration.

The Great Scalia is, on the left, derided as a dogmatic conservative, but what he is dogmatic about is the notion that the Constitution ought to mean something be yond the whims of any one judge or group of justices. He is fond of telling audiences at his speaking engagements that he believes in a “dead Constitution” that predictably means no more and no less than what the words say, as opposed to a “living Constitution” representing the unpredictable biases of the judges who interpret it.

This is not a popular position among liberals, who have come to rely on activist judges interpreting a “living” Constitution to enact policies unpopular enough that they would not succeed in a legislature or a referendum. Democrats are demanding that the president “consult” with them on any potential nominee and are arguing that the president should strive to maintain the “ideological balance” of the court.

But what Mr. Bush and Senate Republicans owe the American people is to listen to what the voters were saying when, as the battle for the courts was put into focus, they went to the polls in 2002 and 2004. South Dakota actually retired a Democratic leader to punish him for his shenanigans in respect of judges. The people know that the current bench reflects the fact that the electorate has traded off between the two parties. Seven justices, including Justice O’Connor, were appointed by Republicans. But four of those faced a Democratic Senate, including Chief Justice Rehnquist.

Today Republicans have controlled the Senate for nine of the past 10 and a half years. Mr. Bush was resoundingly re-elected with a majority of the popular vote in an election during which judicial appointments were an issue. On June 26, Senator Schumer wrote a letter to the president, signed by Senator Clinton and all other Senate Democrats but one, in which he called for the president to consult Democrats when nominating a new justice, since that is “what our citizens want.”

But if actual elections are the standard, our citizens want the kind of nominee candidate Mr. Bush said he would nominate and Republican Senate candidates said they would confirm. The catch is that the voters have denied Mr. Bush a filibuster-proof majority of 60 non-squishy Republican votes in the Senate, a fact that not only affects the Supreme Court confirmation calculations but that has left in irons both Social Security reform and the nomination of John Bolton as U.N. ambassador.

We hope the president nominates a Scalia-like figure to the high court and that the nominee is confirmed. But the only way short of the “nuclear option” to guarantee such an outcome is for the president and his party to get a reliable 60-vote majority in the Senate. What a motivating factor for the Republicans to start getting serious about winning elections in states like New York, where both senators are now Democrats who are opposed to the kind of judges that Mr. Bush got elected by promising to pick.