Every spring for the first three years of President Bush's administration, Karl Rove and other top aides gathered to prepare for the possibility that a Supreme Court justice would retire. Yet, when a seat finally opened in Bush's fifth year, the strategy to fill the vacancy suddenly turned into hurry-up-and-wait.
More than two weeks since Justice Sandra Day O'Connor announced her retirement on July 1, the famously disciplined Bush White House has yet to name a replacement, nor does it look likely to do so for another two weeks. The delay has surprised and dismayed some outside White House advisers concerned that the resulting political vacuum will complicate Bush's selection by allowing a free-for-all interregnum when all sides lobby, advance their candidates and tear down others.
But the delay represents a calculated decision by the president's team that it is better to take slings and arrows on the front end to try to shorten the time the Senate has to consider a nominee on the back end. If Bush names a nominee between July 26 and 28, as many advisers now predict, that would leave fewer than 10 weeks in which his choice would be vulnerable to attack if the Senate votes before the court's term starts Oct. 3.
Bush, who has emphasized the importance of seating the new justice by then, tried to lay the groundwork for such a timetable with his weekly radio address yesterday.
"The experiences of the two justices nominated by President Clinton provide useful examples of fair treatment and a reasonable timetable for Senate action," Bush said, noting that it took the Senate 42 days to confirm Ruth Bader Ginsburg in 1993 and 73 to confirm Stephen G. Breyer in 1994. "These examples show that the thorough consideration of a nominee does not require months of delay."
Bush is using the numbers most favorable to his case, counting from the dates the nomination paperwork formally went to Capitol Hill. Counting from the dates the White House announced the nominations, Ginsburg's confirmation took 50 days and Breyer's took 77. Other nominations have taken longer, including 92 days for Antonin Scalia and William H. Rehnquist as chief justice, 106 days for Clarence Thomas and 114 days for Robert H. Bork, who was rejected. A Bush nomination on July 28, just before the Senate's August recess, would leave 67 days before the next court term opens.
Senate Democrats have been resisting a quick confirmation schedule from the beginning, arguing that it could take time, even several months, to fully vet a nominee and citing O'Connor's commitment to remain on the bench until her successor is confirmed.
"There will be no rush to judgment because the Supreme Court will have its full complement of nine people until the Senate chooses someone," Sen. Charles E. Schumer (D-N.Y.) said at a news conference the day O'Connor announced her retirement. "We have plenty of time to do our constitutional advise-and-consent duties."
The Bush strategy took some of his advisers by surprise. Before O'Connor's announcement, some confidently predicted that the president would name a nominee within 48 to 72 hours of a vacancy to keep the opposition from filling the void. When Chief Justice Warren E. Burger stepped down in 1986, the White House advisers noted approvingly, President Ronald Reagan was ready the same day with Rehnquist's nomination to succeed him.
But the Bush White House was expecting Rehnquist, who is 80 and battling thyroid cancer, to retire this summer, not O'Connor. That reshuffled the political dynamics involved in replacing the first female justice and a key centrist-conservative who has been the court's swing vote for years. In addition, her surprise announcement came on a Friday before a holiday weekend followed by a Bush trip to Europe for a Group of Eight summit, making it impractical to announce a replacement right away.
"I don't think the White House was ready," said a Senate Republican official who did not want to be named to avoid offending the Bush team. "The White House was just as taken back as a lot of other people in Washington were."
The White House was also uncertain whether Rehnquist might still join O'Connor in retirement and so a delay became a useful means to see whether he would tip his hand. Rehnquist finally signaled the White House Thursday night not to wait for him, issuing a statement that he had no plan to retire any time soon.
The cost of waiting weeks to announce a nominee, according to some GOP strategists, is that it has allowed everyone else to dominate the dialogue. Conservatives vigorously attacked Attorney General Alberto R. Gonzales, a possible nominee, as too moderate. Some Republicans are waging quiet campaigns for their preferred candidates. Liberal groups have aired ads pushing a like-minded pragmatist for O'Connor's seat. Senate Democrats went to the White House with their list of candidates. Even Laura Bush weighed in, saying publicly that she wanted her husband to name another woman to replace O'Connor.
"The longer the delay goes on before he makes the nomination, the more cooks we'll see jump in and try to spoil the soup," said Wendy E. Long, chief counsel at the Judicial Confirmation Network, a group supporting Bush judicial nominees. "He doesn't need time -- time certainly doesn't seem to be helping."
"This whole process is really unnerving," agreed Bradford A. Berenson, a White House associate counsel in Bush's first term. "The president is just getting exposed to a lot of chatter from all directions. And that just increases the risk that somehow, some way, somewhere he's going to be persuaded to take his eye off the ball."
But White House aides have concluded that the delay could help them in two respects: First, it has given at least the appearance of a deliberate process. Bush and his staff have contacted more than 60 senators from both parties, undercutting any Democratic complaints that they were not consulted. Second, it will shave off at least a couple of weeks of vulnerability when a nominee would be waiting for Senate hearings after the August recess.
"You don't want to put somebody out there . . . for MoveOn and all the liberal groups to bang on them," said Charles R. Black Jr., a Republican lobbyist who advises the White House. "The poor person, whoever it is, would get beaten to a pulp for five weeks" before hearings even begin.
Even some Democrats agreed with that. "It's exceedingly prudent," said Jack Quinn, who was White House counsel during the Clinton administration, "and if I were involved in the process . . . that's precisely what I would be counseling now."