The president believes the decisions he makes this month may be the most important he will ever make, and they are nothing to do with Africa or global warming

George W Bush headed off for what the Washington Post called "an international conference" with a sheaf of papers at his side, on his armchair in Air Force One. He has always eschewed reading long briefing

papers, but I'm told he now works harder on them than he used to: he regards the decisions he has to make this month as perhaps the most important he will ever take. I refer not, alas, to Africa or global warming - but to the vacancy on the US Supreme Court that he must fill.

The nine members of the Supreme Court are appointed by the president and then ratified by the Senate (so much for the vaunted American separation of powers, of which we heard so much over Independence Day weekend). Then, for decades to come, they adjudicate on pressing issues such as abortion, capital punishment, the role of state and religion, and gay marriage. The present court, with two women and one black man, has been the longest-serving since 1823. However, with the resignation of Sandra Day O'Connor on 1 July, Bush is now required to appoint a judge who may have a final word on these issues until, say, 2050.

Lawyers here, particularly those on the right, love the fiction that Supreme Court judges are devoted scholars, who strictly interpret the constitution and will let no political views intrude. In fact, the reverse is true: seven of the current nine justices have been appointed by Republican presidents, ensuring the kind of right-wing majority that handed Bush victory over Al Gore in the post-election wranglings in 2000.

But sometimes the best-laid plans of presidents go wrong. They have found that lawyers, usually judges, often express establishment views during their rise, but once on the Supreme Court and knowing that they cannot be removed, become more gentle. John Paul Stevens, now 85 and appointed by Gerald Ford in 1975, is today a reliable member of the liberal majority alongside David Souter, chosen by Bush's father. In 1981 Ronald Reagan thought that O'Connor, the first woman to be proposed, was reliably right wing, because she had been a staunch Republican in the Arizona Senate. Instead, she turned out to be the swing vote between right and left, voting (for example) to continue executing juveniles, but supporting affirmative action in universities and (as recently as the end of June) banning the Ten Commandments from a courthouse.

Left and right, therefore, are gearing up for the fight of the century - and Bush is determined not to repeat the mistakes of Reagan or Ford and to appoint a reliably conformist, right-wing judge. But, as I wrote last week, he is increasingly obsessed with posterity: will it view him as a better president if he appoints a consensus candidate supported by all? Or should he follow his instincts, by picking a hang-'em-and-flog-'em judge?

His position is complicated by the grievous illness from thyroid cancer of the Nixon-appointed William Rehnquist, 80, the right-wing chief justice who introduced Gilbert and Sullivan gold stripes on his robes to show who was boss. The consensus for months has been that he will soon resign, but he is a widower who lives only for his job; only even more severe infirmity or death, I suspect, will force him out. Either way Bush will soon have to appoint a successor to Rehnquist, too - which is likely to involve promoting one of the current judges and then appointing another new rank-and-file member.

I have never known Washington so nasty as it is now, and the likelihood is that Bush's nomination will only make this worse; only if he chooses the high road for posterity will that be avoided. Just seven judges were rejected by the Senate during the 20th century, one being Robert Bork, a right-wing Reagan nominee in 1987 who endured deeply unpleasant hearings before the vote went against him.

Bush likes to show how independent he is, and if he could he would appoint a right-wing, Latina judge, but there is a dearth of those. His favoured successor to O'Connor is therefore his present attorney general, Alberto Gonzales, 49, who was a judge in Texas and is an old Bush protege. I can testify that Gonzales - who advised the president that he could ignore the Geneva Conventions because they were "outdated" - is a nice man personally, which is probably why right-wingers see him as a potential turncoat.

Democrats are salivating at the prospect of filibustering some wildly right-wing nomination, but I suspect they might save their firepower for the nomination of Rehnquist's successor. My suspicion is that Bush might then go for the egregious Clarence Thomas. Even Gonzales's nomination would lead to deep nastiness in the Senate and would enable Democrats to air complaints against the Iraq war. Most of all, it would give them a chance to resist what many are increasingly seeing as a growing threat to 21st-century America: the untrammelled growth of Bushism.

Post your comment

Please note: you will need to login or register before you can comment on the website