More Disorder in the Court?
If there's a Supreme Court vacancy, the Democrats will have a lot to say about it
Editor's Note: Leonard Leo, quoted in this story, asked that his high court assessment be more fully explained. Members of the coalition working to win confirmation for White House judicial nominees remain confident, he says, that with a strategy that includes targeting Democrats from states that voted for Presiden Bush, conservatives can still win approval of nominees in the mold of Justice Samuel Alito. Four such Democrats, all still in office, were among the 58 senators who voted to confirm Alito earlier this year.
Just days before last month's elections, a conservative weekly's website suggested that a member of the U.S. Supreme Court was gravely ill and that friends had been asked to pray for 86-year-old Justice John Paul Stevens.
Such rumors are normally "too ghoulish to repeat publicly," wrote Sean Rushton on HumanEvents.com. But with control of the Senate at stake, it is "news that should be considered," he said, even if it's unfounded.
That get-out-the-vote effort stuck out even in a campaign full of cynical appeals. Today, nearly a month after Democrats won both houses of Congress, the Stevens scuttlebutt remains uncorroborated–the senior justice has participated fully in recent arguments, as has Justice Ruth Bader Ginsburg, 73, who's also been the subject of rumors of poor health. But the effort by Rushton, former director of a conservative group devoted to winning approval of White House judicial nominations, underscored the right wing's investment in the issue of high court nominees. With newly powerful Democrats like New York Sen. Charles Schumer of the Judiciary Committee vowing an end to "the days of hard-right judges," the nominee game has become far more complicated.
Vermont Sen. Patrick Leahy, the Democrat who will chair the Judiciary Committee, said he is willing to work with Bush but noted that "the power to avoid destructive political warfare over a vacancy on the Supreme Court lies with the president." So what does that mean for future nominations? The new dynamic has unleashed speculation over whom President Bush may consider if he gets another opportunity to nominate a Supreme Court justice–it would be his third–during his remaining two years. And it has reinvigorated strategy sessions on all sides to assess the many "what if's."
Would the lame-duck president instigate a potentially unwinnable war with Senate Democrats by putting up a conservative in the mold of Samuel Alito, described recently by a GOP activist as "one of the most conservative federal appeals court judges ever confirmed"? Or would he work with Democrats to build consensus around a moderate conservative with a shot at winning a Senate confirmation vote? And would the president try to make history with a Hispanic nominee–or make up for his failed effort to get White House Counsel Harriet Miers on the bench and pick a woman?
"Obviously, everything changed when the majority changed," says Mark Agrast of the liberal Center for American Progress. "The issue of filibuster, which colored the whole discussion previously, is off the table, and nominees now will go through the regular order: from Judiciary Committee, to the Senate floor, and to a vote." And both sides are eager to test the waters.
The View From the Right
Leonard Leo of the conservative Federalist Society is already urging Bush to stick with his strategy of picking nominees that please the right, even without a GOP Senate majority. "No matter who he nominates, it's going to be a firefight," said Leo, a behind-the-scenes player in the administration's judicial nomination strategy. "What's the worst that happens? The cost of not doing the right thing is greater than a nominee going down in flames." He and others on the right believe that if the president has the opportunity, he'll nominate a woman. And the top name on their list is Edith Hollan Jones of Texas. Appointed in 1985 to the Fifth Circuit Court of Appeals in Houston by President Reagan, Jones, 57, is now a chief judge and has been on the Supreme Court shortlist since the president's father was in office.
The right touts her as a pioneer–the first female partner at a Houston law firm–and a jurist who's tough on crime. A bankruptcy law expert, Jones opposes abortion, supports the death penalty, and is as well known for her conservative ideology as for her intellect. But a Jones nomination would be acrimonious, Democrats say, citing her unfriendly rulings on employment discrimination and sexual harassment cases. (She said to a lawyer outlining how his client was sexually harassed: "Well, your client wasn't raped.") Another familiar favorite of conservatives is Janice Rogers Brown of the D.C. Circuit Court, a sharecropper's daughter who became California's first black female justice despite receiving an "unqualified" rating by the state bar's nominee evaluation commission. Raised a Democrat, Brown is now a conservative Republican and has compared liberalism to slavery. Michigan Supreme Court Justice Maura Corrigan is also a potential nominee, though seen as untested on cultural issues. Respected for her work on family law issues, she adheres to Justice Antonin Scalia's philosophy of judicial restraint.
A List from the Left
If the Democrats know whom they would support as a potential Supreme Court nominee, they aren't talking. "The minute you put somebody on your list," says a Senate aide, "they have a target on their back." But a number of moderate conservative judges emerged during the John G. Roberts and Alito hearings–some on lists compiled by progressive activists–and three are still being talked about: Bush appointees Edward Prado of the Fifth Circuit Court in San Antonio and Allyson Duncan of the Fourth Circuit in Richmond, Va.; and Sonia Sotomayor, appointed to the Second Circuit in New York by President Clinton.
Both Prado, who is Hispanic, and Duncan, who is African-American, are relative newcomers to the federal circuit and have thin records. And Prado, whom liberals have lauded for opposing mandatory minimum prison sentences and backing gun purchase waiting periods, has been criticized for being inappropriately jokey on the bench. Though they are praised by some, both judges are described by others as not ready for prime time. And conservatives view Sotomayor, also Hispanic, as a political wild card, making her nomination unlikely.
Compromise?
"The $64,000 question is, What will the president do?" says Elliot Mincberg of the liberal People for the American Way. "The best precedent is under Clinton, when Republicans were in the majority in the Senate and Clinton consulted with Orrin Hatch, the Judiciary Committee chair." Hatch is said to have talked the president out of nominating Bruce Babbitt, a former Arizona governor then serving as Clinton's interior secretary. But the GOP-controlled Senate confirmed Clinton's eventual pick, Ginsberg, and a year later also approved Stephen Breyer for the high court. Both have proven reliably liberal counterweights to Justices Clarence Thomas and Scalia. Republicans say Bush should be shown the same deference–it's his pick, and the new Senate should confirm qualified nominees even if it doesn't share their philosophies. There is some talk that consensus could be reached if the president picks an older politician with good relationships in the Senate-someone like Hatch or Warren Rudman, a former GOP senator from New Hampshire.
Moderates like Sarah Chamberlain Resnick of the Republican Main Street Partnership argue that conservatives angling for a fight are misreading the public. Watching the election results come in, she says, she concluded that the American people "voted fighting out."
"The president does have something to lose–why would he want to have Democrats vote down his nominee?" she says. Resnick advocates a compromise nominee so Republicans can "get back and keep the White House."
Those who want a window into how a Supreme Court battle may play out under the new world order will be watching closely next year when the Senate again considers the president's nominees for the federal circuit courts, which have 16 vacancies. In a nod to his base in the days following the GOP defeat, the president resubmitted to the lame-duck Congress a slate of five controversial nominees previously filibustered or blocked by the Democrats.
Nan Aron of Alliance for Justice, a progressive coalition that works on judiciary issues, says the president's actions suggest that the chances are slim to none that Democrats will be able to work with the White House on judicial nominees. "It's clear from the little we know so far that the president is going to pursue his court-packing agenda," she said. "No matter how they slice it and dice it, George Bush will not relent."
And yet, with a contentious war still most likely raging in Iraq, will the American public-and the president-have the stomach for a knock-down, drag-out fight over the courts? Perhaps not. But it's hard to imagine the adversaries in this fight simply dropping their gloves.
This story appears in the December 11, 2006 print edition of U.S. News & World Report.