As I write this in mid-May, Senate Majority Leader Bill Frist (R-Tenn.) is threatening to use the "nuclear option" to push for up-or-down votes on President George W. Bush's judicial nominees. That means he might jigger Senate rules to end the Democrats' filibuster of Bush's picks for the federal bench. Given that Senate rules governing debate have been changed repeatedly over the years–the last time was in 1975, when the number of senators needed to end a filibuster was reduced from 67 to 60–invoking atomic bombs and mushroom clouds strikes me as hyperbolic. Then again, senators–and senators alone, it seems–insist on calling their legislative chamber "the world's greatest deliberative body."
While it's not clear whether Frist and the Republicans actually will go nuclear, this much seems more certain than a cost overrun on a federal contract: The political fighting will get really nasty when the president gets to pick a nominee for the U.S. Supreme Court. Given Chief Justice William Rehnquist's flagging health, Justice John Paul Stevens' advanced age, and Justice Sandra Day O'Connor's reported interest in retiring, that day will come–and sooner rather than later. Indeed, Bush, who has signalled he'll pick judges who think like controversial justices Antonin Scalia and Clarence Thomas, may well get to pick a High Court majority that will last another 20 years or more.
With that in mind, we've asked legal experts to tell us whom they would like to see get the nod ("Who Should Reign Supreme?," page 24). As you might expect from a pack of lawyers, there's not a lot of agreement, though there is a dreary consensus that first-rate thinkers need not apply. The confirmation process has seen to that. As Contributing Editor Michael McMenamin puts it, "The last three decades have seen an almost unprecedented parade of compromise choices of undistinguished jurists, none of whom had established much, if any, of a judicial reputation before their elevation to the bench. Few on the highest bench today have managed to rise above their humble and obscure origins."
Other Supreme Court?related pieces in this issue include two interviews with legal historians. In "Not So Supreme" (page 41), Mark Tushnet argues that the Supreme Court's influence on American society is generally overrated; he also sums up the legacy of the Rehnquist Court as one of "instrumental federalism." In "Supreme Court Senility" (page 44), David J. Garrow discusses the troubling history of High Court judges who stay on the bench long after they are no longer up to the job. Then there's Damon W. Root's provocative polemic "Unleash the Judges" (page 34), which makes "the libertarian case for judicial activism."
As a package, these stories may allay some of the High Court anxiety many of us are feeling these days. At the very least, they'll provide a useful map if and when the political nukes are really launched.