The last day of the Supreme Court’s term — often a day on which justices announce their retirements — is three weeks away. Anticipation is building in Washington that President Bush will soon have his first opportunity to fill a court vacancy.
The base line which Bush’s advisors and most GOP senators would use in considering nominees is an approach to judging that refrains from imposing social policy changes, such as redefining marriage, on American society.
There are two other factors the administration would use in assessing a nominee to the Supreme Court:
- Is the nominee young enough to be able to serve on the Supreme Court for 30 years?
- How well would the nominee withstand fire from Democratic interrogators on the Senate Judiciary Committee during confirmation hearings?
Names being discussed in Washington
The names now being discussed in the halls of the Senate and among lobbyists include three federal appeals court judges who all are young enough to serve for decades:
- Judge Michael McConnell, 50, who has served on the Tenth Circuit Court of Appeals in Denver since 2002.
- Judge J. Michael Luttig, 50, who has served on the Fourth Circuit Court of Appeals in Richmond since 1991.
- Judge John Roberts, 50, appointed by Bush to the Court of Appeals for the District of Columbia Circuit in 2003.
“While I like Mike McConnell, there’s no one being discussed of the names that you hear that I’m not comfortable with,” said Jay Sekulow, an influential conservative lawyer who is chief counsel for the American Center for Law and Justice and who has argued several religious liberty cases before the Supreme Court.
No one has yet said publicly whether there will be a retirement from the court or which justices might step down.
If it were Chief Justice William Rehnquist, then the job search will call for a manager and consensus builder. “It’s a huge role, it’s not simply administrative. It’s coalescing, it’s leadership, and that has an impact” on the selection, Sekulow said.
A Judiciary Committee member, Sen. Jeff Sessions, R-Ala., said, “You need somebody who is consistent with what President Bush promised in this last election and with what I think the American people want: a capable jurist of breadth and integrity who understands that a judge’s role is more akin to an umpire than a political leader.”
Sessions said the majority of the American people are worried that judges “who are unaccountable and unelected are deciding social questions, pretending that it’s constitutional when it’s not. The Constitution never contemplated that ‘equal protection’ meant that two men could get married; (judges) decided in their own minds that this would be a good idea and declared the Constitution said that.”
Democrat: nominee must uphold privacy rights
A Democratic member of the Committee, Senate Minority Whip Dick Durbin of Illinois, said he would want to see “a responsible moderate who will serve the nation before any political agenda.”
Durbin emphasized the need for a nominee to adhere to the court’s 1965 Griswold v. Connecticut decision, which declared a right to privacy, even though that word isn’t found in the text of the Constitution. Griswold served as the foundation for the 1973 Roe v. Wade decision legalizing abortion.
“If they don’t respect the Griswold decision, as far as I am concerned they should be filibustered,” Durbin said. “(Supreme Court nominee) Robert Bork tried to split a few hairs on this issue and it got him into a world of trouble” in his 1987 confirmation hearing.
Advocacy groups, both liberal and conservative, are poised to make the case for and against Bush Supreme Court picks, as soon as a vacancy is announced.
Critical view of Roberts
Assessing John Roberts, Seth Rosenthal, legal director of the Alliance for Justice, a coalition of liberal groups that has opposed many Bush nominees, said, “He’s only been on the bench two years, so the most important thing is to ensure that the Senate very carefully question him about his judicial philosophy.”
Rosenthal noted that Roberts had, while serving in the Justice Department in both the Reagan and George H. W. Bush administrations, “helped craft the legal policies of those administrations, policies that would weaken the voting rights of African-Americans, undo the reproductive rights of women, and eviscerate congressionally created litigation rights of environmentalists.”
In 2002, the Washington Post editorial page, which often takes a liberal view of things, waxed enthusiastic about McConnell, calling him, “One of the best qualified nominees a president of either party has advanced for a court of appeals vacancy in many years… the sort of person who would bring intellectual range, depth and independent-mindedness to the bench.”
A Senate Republican aide involved in judicial nomination matters, who spoke on condition of anonymity, voiced skepticism about McConnell’s view of stare decisis, the principle that judges should give deference to precedents established in previous cases.
“There’s lots of suspicion he loves stare decisis so much that he’d never touch Roe,” the GOP aide said of McConnell. “That’s the dividing line: whether he’s willing to operate with an open mind, or whether he is so pledged to stare decisis that he couldn’t have an originalist view,” that is, a view that the Constitution must be interpreted in line with what the authors of specific constitutional provisions intended.
While McConnell did write in 1998 that Roe v. Wade was “an embarrassment to those who take constitutional law seriously,” the GOP Senate aide said, “that doesn’t mean much if he is a firm believer in stare decisis.”
Luttig's critique of 'activism'
Luttig, appointed to the appeals court when he was only 37, has spoken out eloquently on the need for judges to be non-political. “There is no such thing as ‘good’ or ‘justifiable’ judicial activism; all ‘activism’ is in defiance of law — ‘law’ defined as the politics of the people, not the politics of individual, unelected, life-tenured judges,” Luttig said in a 2003 speech to the American Consitution Society.
But Rosenthal takes issue with some of Luttig's rulings: “In the name of state’s rights, he takes a radical, muscular view of the court’s power to strike down popularly supported federal laws; but on the other hand he takes a radically restrictive, anemic view of federal courts’ power to remedy violations of constitutionally protected rights and freedoms. For instance, he voted to strike down Virginia’s partial birth abortion act.”
The confirmation process has become a campaign and the nominee must sell himself to the American people. One error Bork made in his confirmation hearings was to sound like a chilly academic.
When Sen. Allan Simpson, R- Wyo., one of Bork’s supporters on the Judiciary Committee, asked him why he wanted to be a justice of the Supreme Court, Bork said, “It would be an intellectual feast just to be there.” After his Senate defeat, Bork admitted that answer was a mistake.
Given the television-driven nature of confirmation hearings, there’s a value in having a personal story to tell.
Tragic life experience
Judge Luttig has had a wrenching life experience which may make him a more empathetic figure than other nominees.
Luttig’s father was murdered in a carjacking in Tyler, Texas in 1994. Although Luttig might be reluctant to talk about his father’s murder in a confirmation hearing, every profile of him would mention it.
Sekulow said, “When you look at Mike Luttig’s family tragedy that he has dealt with, people can relate to those things. Others have stories too: Mike McConnell went to an inner-city church and worked with inner-city youth, there’s a lot of good stories.”