Long after George W. Bush takes office, the 2000 election will continue to cast a shadow over the Supreme Court. Democrats are seething at what they consider a blatantly political, conservative activist decision by five Republican-appointed justices to end all recounts in Florida and hand the presidency to Bush. Many conservative Republicans, who have long fought against liberal judicial activism, are equally uncomfortable with the activist aura of the court’s decision–no matter how pleased they may be with the outcome. They are now counting on Bush to fill any vacancies on the court with reliable conservatives who would move the law to the right. With speculation that both 76-year-old conservative Chief Justice William H. Rehnquist and 70-year-old centrist Justice Sandra Day O’Connor may retire in the next year or two, Washington is already bracing itself for what could be the nastiest confirmation battles since Robert Bork and Clarence Thomas. "Whoever gets it is going to go through hell," predicts one Republican leader.
Yet some good could still come from the lingering bitterness over Bush v. Gore. Skepticism about liberal and conservative activism, combined with the near-even Democratic-Republican split in the Senate, could create the strongest movement in memory to fill court vacancies with moderate justices who are genuinely committed to that old conservative motto, "judicial self-restraint."