Chief Justice Thomas
President Bush gets a free pass on replacing Rehnquist. Here's how he can make the most of it.

The Wall Street Journal, Friday, December 31, 2004

If Chief Justice William Rehnquist retires next year, President Bush likely won't face a tough battle over his successor. So reports the New York Times, citing consultant Howard Wolfson and "other Democrats." The Times attributes this to the Democrats' desire to soften their image as pro-abortion zealots. The court has a 6-3 majority in favor of Roe v. Wade, and Chief Justice Rehnquist is among the dissenters. Why should the Democrats spend political capital merely to run up the score?

Anyway, this is a battle the Democrats would almost certainly lose. With only 45 senators (including Vermont's Jim Jeffords), they would need the support of six Republicans to vote down a nominee. A minority could filibuster to block a vote (unless Republicans change the rules), but five Democratic defections would vitiate that tactic. Tom Daschle's filibustering of low-profile appellate court nominees is one reason he is about to become an ex-senator, and that lesson surely hasn't been lost on his red-state colleagues.

If Democrats are lucky, Mr. Bush won't get a second chance to appoint a justice until after the 2006 election, once (they hope) their incumbents are safely re-elected. If the Democrats pick up three seats, they could even sink an anti-Roe nominee with the help of GOP liberals Lincoln Chafee, Susan Collins and Olympia Snowe.

Since it looks as though President Bush is going to get a free pass on his first Supreme Court pick, how can he make the most of the political opportunity? By elevating Clarence Thomas to chief justice. Justice Thomas is the youngest member of the court, and his appointment might provoke Democrats into a futile fight. As a black conservative, he drives liberals and Democrats to irrational extremes. They depict him as an "Uncle Tom" and an intellectually inferior beneficiary of affirmative action. If Democrats cannot resist expressing such prejudices, they will damage their reputation as the party of racial equality, which can only help the GOP.

As for Justice Thomas's replacement, Mr. Bush would doubtless like to appoint the first Hispanic justice. But it would make political sense to wait until one of the pro-Roe justices leaves the court. In that case, the Democratic base will demand a fight-and the president might as well make senators choose between Latinos and abortion advocates.

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