A Wasted Debate

Maybe we should hope that William H. Rehnquist lives forever. Or at least that he rallies enough to continue to serve as chief justice for another few years.This is more than in the best interest of a jurist who in his early days on the high court was more impetuous than judicious but who now seems to be a fixture in American life. It’s in the national interest, too. The thing we don’t need right now is a hot summer of anger and contention over a new nominee for the Supreme Court.Especially since the entire debate will be pointless and an utter waste of time.I can hear you shriek: Waste of time? You must be nuts. Rehnquist is the chief justice of the United States, and you don’t think that position matters? Is it a waste of time to examine the question of abortion in American life? Is it a waste of time to question the state of separation of church and state in the nation? Is it a waste of time to explore questions of judicial activism at a time of an activist Congress but a passive federal regulatory apparatus? Is it a waste of time to argue about whether the court is too liberal, or too conservative, or too rooted in the assumptions of the late 20th-century welfare state, or too eager to embrace the early 21st-century libertarian creed?My answer will trouble all of you: Yes, it is a waste of time. Because no matter how much the Democrats howl, the conservative president and conservative Senate are eventually going to confirm a conservative jurist, not a liberal, probably not a moderate and almost certainly someone who opposes abortion rights.Because the substitution of one conservative for another in the court’s lineup will change nothing – or nothing that can be safely guessed by the pugilists on both sides whose predictive powers are no better than those of the people who are trying to figure out how long the United States will be in Iraq.Because even if President Bush tries to elevate Justice Antonin Scalia or Clarence Thomas – this is the liberals’ great fear, in part because of the symbolic value such a selection would have in the culture wars – neither has any record of building alignments or coalitions. Scalia is openly contemptuous, sometimes scathingly so, of his colleagues, and Thomas is more of a loner than the man once (quite wrongly, it turns out) regarded as a near hermit, David H. Souter.Because the job of chief justice will almost certainly be a lot different in the years to come than it has been in past. Earl Warren was a strong chief justice whose political skills and vision reshaped the court, and American life, for more than a generation. Warren E. Burger and Rehnquist were not – not because they weren’t strong intellects and leaders, but because times have changed.Chief justices don’t hurl thunderbolts from legal Olympuses anymore, mostly because the culture recognizes no Mount Olympuses on the American landscape anymore. Presidents are constricted more than they used to be (think of the War Powers Act) and so is Congress. (Quick, all of you who knew that Hugh Scott was the minority leader of the Senate a third of a century ago: Who is the Senate minority leader this very minute?) Then again, so are priests, ministers, rabbis, television sitcom fathers, and Ohio State football coaches. None of them have the power their predecessors did. (Dare we add newspaper editors?)Moreover, neither Burger nor Rehnquist was a political operator in his years as chief. In the past third of a century, the consensus building function of the chief justice has become a regressive trait, so much so that it will be very difficult to revive, even by an alpha male like Scalia. Indeed, a lot of the time it was not the chief but one of the various associates who performed what few consensus tasks were achieved; in that role, former Justice William J. Brennan Jr. excelled.For all those reasons, the Rehnquist succession will be important but probably not significant. The O’Connor succession will be both, and that’s the one that will really matter.The O’Connor succession could happen anytime in the next few years. Sandra Day O’Connor has served on the bench for two dozen years. She’s 75 years old. She very likely will be the next Supreme Court associate to retire after Rehnquist, and her departure will really put the balance of the court into jeopardy. (Justice John Paul Stevens, born while Woodrow Wilson was president and approaching his 30th anniversary on the bench, is 85 years old, but no one believes he’s even close to retirement. The man’s not for quitting.)The O’Connor resignation is the fire next time, and it will rage out of control.But the first fire – the Rehnquist one – will be fierce as well, mostly because the combatants so want this fight (for their own egos and for their interest-group treasuries) that they cannot help themselves. On both sides they are ready, with talking points, with phony grass-roots movements, with ad copy, with doomsday (or hallelujah) rhetoric, and with plans to take a political system that already is freighted with incivility and render it immobile with contention.That’s not what we need while the country is divided over war in Iraq, while the country still faces a mortal threat from Al Qaeda (and from aggrieved groups we never have heard of), while the economic recovery is still only tentative and unevenly distributed, while the public is disgusted with government and impatient with immature partisan tactics.What the country needs now, along with a cure for the thyroid cancer that has bedeviled Rehnquist, is a cool summer of reflection, not a hot one of recrimination.

A Wasted Debate

A Wasted Debate

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