Time is Right for Bush to Nominate 'Extreme' Candidate for Supreme Court Justice, Says Expert on Judicial Process

BUFFALO, N.Y. -- If history is any guide, the timing may be right for President Bush to nominate a hard-line conservative for the Supreme Court, according to University at Buffalo political scientist Mark Hurwitz, Ph.D., an expert on the judicial process.

"The time for Bush to nominate an 'extreme' candidate is now," says Hurwitz, an assistant professor of political science. "There's evidence that the later a president waits to nominate a favorite candidate for the court, the less able he is to get the candidate through the nomination process."

"The last two years of a presidency is historically when nominations have gone down in defeat."

For example, if President Reagan during his first term had nominated the conservative Robert Bork to the high court, and nominated the more moderate Sandra Day O'Connor during his second term -- ainstead of the other way around -- he may have successfully appointed Bork to the court, Hurwitz speculates.

Also, if Bush were to wait until the second half of his term to nominate an extreme candidate -- assuming another justice retires at that time -- he may have less Republican support in Congress as a result of mid-term elections, Hurwitz points out. This was a factor in Reagan's unsuccessful Bork nomination in 1987.

According to Hurwitz, O'Connor's retirement may have surprised the Bush administration, which may have been planning for the retirement of Chief Justice William Rehnquist. "Now, Bush has cross-cutting issues to consider: the issue of diversity on the court, and the issue of a candidate's ideology," he says.

Whoever is nominated, Hurwitz expects Bush to be ready for a fight and very loyal to his nominee. A heated partisan battle over the nominee would be nothing new to the process, he says.

"The amount of money being spent may be extreme compared to the past, but Supreme Court nominations have always been big issues, especially when you consider there only have been 120 or so Supreme Court justices in our history."

In Hurwitz's view, a partisan battle would have good and bad consequences.

"A partisan battle will raise people's interest and knowledge levels," Hurwitz says. "They may complain, but they'll watch it.

"On the other hand, when there's complete partisanship you get distrust. You need both sides talking to push through a nominee."

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