The Bush is like Carter Meme

Here's something I'd like to see on Final Jeopardy next year:

Answer: Jimmy Carter and George W. Bush

Question: Who are the only US Presidents to serve a full term and not appoint a Supreme Court justice?

I've been surprised this hasn't been picked up in the mainstream media. I'm not much of a Supreme Court watcher, and so don't know all the nuances of when retirements are traditionally announced, but it's the middle of May, and the window of opportunity is closing. The supremes hear oral arguments until June 3rd, and then spend (I think) 2-3 weeks issuing rulings. Seems unlikely that a retirement announcement would come out before mid-July. Between vetting candidates, hearings, and the upcoming election, it's going to be pretty hard to get someone appointed before next January, meaning that if Bush loses he's going to have to hustle or be forever joined to Jimmy Carter.

But that assumes there will be a retirement. The real story here is that there haven't been any in Bush's term thus far, and probably won't be until after the election. When Bush came into office there was widespread speculation he might get to appoint three or four justices in just his first term, including a chief justice. Rehnquist is now 80 years old and has a bad back. John Paul Stevens is 84, Sandra Day O'Connor is 74 and has spoken of retirement for years (and of her desire to have her replacement named by a Republican). Ruth Bader Ginsburg is 71 and had to have her sigmoid colon removed and extensive chemotherapy because of colon cancer. All of them have had good reasons for retirement for several years now, yet none has budged. Why?

No doubt each justice has his or her own story but I would guess there are also some common reasons. Two come immediately to mind:

• Nearing the end of their careers, they have a sense of their place in history. Having rendered the controversial decision which put Bush in office, they might have a desire to wait for him to achieve a clear cut electoral victory before letting him choose their successor. This argument might particularly apply to Rehnquist, who has seemed sensitive about the decision and even wrote a book on the somewhat similar Hayes-Tilden contest of 1876.
  
• Might it be they are waiting (hoping?) for a more moderate president? Stevens and Ginsburg would almost certainly like to leave the decision up to a Democrat (Ginsburg would probably have to be carried out in a body bag before she'd give Bush the option) and O'Connor, while an active Republican, is clearly a moderate. In fact, it's a measure of how far right the Republicans have moved that even Rehnquist, once regarded as very conservative, is now well to the left of the administration. Bush has repeatedly said that Scalia and Thomas are his two favorite justices, but by all accounts they are so far right as to be isolated on the court. Would any of the four like to see Scalia as Chief Justice and an arch conservative as the court's first Hispanic member?

Again, I'm not an avid court watcher, just an interested bystander. So far I've seen nothing on this in the media (and with the situation in Iraq, lots of things are getting sqeezed off the front page) but I suspect there's a good story in there. Maybe Dahlia Lithwick or another good legal reporter will pick it up.

Comments

[tedb]

Excellent analysis, and one that gives some hope for America if Bush is defeated in November (or preferably, impeached before then). Who woulda thunk that Bush might fail to appoint a single Supreme after they bent over backwards to appoint him? Of course, he's done plenty of damage in the lower courts,...and the game ain't over.