World War III Hits the Senate

The armies gather:

Justice Rehnquist's death on Sunday presented President Bush with a new problem, which he promptly resolved by naming Roberts to succeed Rehnquist as Chief Justice. This means that Justice O'Connor will stay on the Court for the time being, and a new nominee will be selected to fill her position when she resigns following Judge Roberts's expected confirmation.

This change, though subtle, could represent a lucky break for the Democrats. Substituting Roberts for O'Connor would have been a significant upgrade, from a conservative point of view. Replacing Rehnquist with Roberts, on the other hand, is good to the extent that it likely represents another 30 years of conservative service on the court, but it will not effect a short-term change in the balance of power. In that sense, the key appointment has always been O'Connor's successor. And for that appointment, Roberts had turned

out to be an inspired choice. The Senate Democrats and their supporters badly wanted to block the rightward shift that would be implicit in the replacement of O'Connor with a conservative. But Roberts proved to be an immensely circumspect figure. In 50 years, he seems to have said or done almost nothing controversial, while nevertheless establishing his reputation as a solid conservative. In personal, professional, and ideological terms, Roberts appears bullet-proof, and Democrats had more or less resigned themselves to being unable to block his succession to O'Connor's prized "swing" seat.

Now, the Democrats have been granted a reprieve. They can let Roberts go through with only token opposition, knowing that the philosophical composition of the Court will not change significantly, and concentrate their fire on Bush's second nominee, who will fill the critical seat being vacated by Justice O'Connor. One question, from a conservative point of view, will be whether President Bush can find another nominee who is both as solidly conservative and as non-controversial as John Roberts. Unfortunately, it is not obvious that he can.

The battle looms, but will it go nuclear?