With the Chief Justice’s statement that he plans to stay on the Supreme Court as long as his health permits, it is now clear that President Bush will have no opportunity to pursue a two-seat strategy. This is too bad for the Senate as an institution. As I argued in The New Republic Online recently, the Chief Justice could have avoided a nuclear showdown in the Senate:

Enter the Chief Justice. By retiring now, he can create what might be called the “West Wing” scenario, which has already been discussed on some blogs. In an episode of the television series last year, the fictitious President Bartlett had two Supreme Court seats to fill. Despite his own liberal leanings, he filled one seat with a more conservative candidate and one with a more liberal candidate. The ability to negotiate with two seats allowed both candidates to get through the Republican Senate.
The same logic would hold in the real world. If Bush had two seats to work with, he would likely nominate a conservative to one seat and a more moderate nominee to the other. Democrats probably would not block a deal that preserves the Court’s current balance of power. Indeed, preserving the status quo is about the best deal they can realistically hope for. For their part, conservatives would probably be happy with another Scalia or Thomas on the Court, even if that came at the price of a more moderate justice in the other seat.
If Bush instead picked two hardline conservatives to fill those seats, Democrats would have a stronger argument to make to the Republicans in the Gang of 14 that these would be “extraordinary circumstances” justifying a filibuster. Meanwhile, the public would probably favor maintaining the status quo on the Court, would view the Democrats’ filibuster as reasonable, and would therefore be unlikely to countenance the nuclear option. In short, a Rehnquist retirement opens up greater space for political compromise in a Senate that is currently short on trust.

The Chief’s statement has come as a relief to some. Doug Kmiec, for example, writes at National Review Online: “It should be of relief to us all, since it lessens what was becoming all too apparent