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Court vacancy would trigger political warfare

Washington abounds with reports that at least one of the justices will retire. That would mean another of the capital’s epics: a Gladiator-style battle over Senate confirmation of President Bush’s nominee.
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As the Supreme Court winds up its 2002-’03 term this week with rulings on affirmative action and sodomy laws, Washington abounds with reports that at least one of the justices will retire. That would mean another of the capital’s epics: a Gladiator-style battle over Senate confirmation of President Bush’s nominee. Democrats have proven in the past five months that they can carry on a filibuster to block a vote on Bush’s appeals court nominees. Nothing suggests anything less than an all-out war over a high court vacancy.

It was not always this way. Prior to the struggle over President Reagan’s nomination of Robert Bork in 1987, most nominees won swift and cordial Senate confirmation.

Hearings on nominees conducted by the Judiciary Committee were often perfunctory affairs.

No Supreme Court nominee had ever testified before the Judiciary Committee until Harlan Fiske Stone did so in 1925. None of Stone’s 74 predecessors on the court had ever asked to testify or been summoned to do so.

In 1939, nominee William O. Douglas, who would turn out to be one of the most controversial justices in Supreme Court history, as well as its longest serving, appeared for a mere five minutes before the Judiciary Committee, was asked no questions, and was confirmed by the full Senate shortly thereafter.

Confirming a Supreme Court nominee was always a political matter — but in the past two decades it has become a form of electoral politics.

Nominees must run for the court job, with the electors being the 100 members of the Senate. Advocacy groups run campaigns for and against the nominee, complete with TV ads and street protests.

Why has confirmation become so politicized?

The court has involved itself in decisions once made by state legislatures, city councils, or local custom, such as whether a rabbi should be able to say a prayer at a public high school graduation ceremony.

Confirmation battles are motivators and fund-raising beacons for advocacy groups from People for the American Way on the left to Concerned Women for America on the right.

Over the past 40 years, Democrats have proven to be stronger in congressional elections than in presidential elections.

Republican presidents from Richard Nixon to George Bush crushed their Democratic opponents — but then usually were faced with a Senate that was still under Democratic control. Democrats have had enough votes to defeat three Republican nominees since 1969, and to nearly scuttle a fourth, Clarence Thomas.

Confirmation warfare is fueled by a fundamental dispute over how to interpret the Constitution.

Most liberals want the Constitution to be read expansively to guarantee broad privacy rights and to permit government action to redress economic inequality.

Many conservatives want a reading of the Constitution in which individual rights are limited to those specified in the text and interpretations are governed by the intentions of the Framers.

Reagan said he nominated Bork because of his “belief in judicial restraint — that a judge is bound by the Constitution to interpret the laws, not make them.”

DISPUTE OVER PRIVACY RIGHTS Bork, for instance, believed there was no right to privacy specified in the Constitution. The court’s 1965 Griswold decision overturning a Connecticut ban on contraceptives was, in his view, not based on anything in the Constitution.

Most Democrats — and a few Republicans such as Arlen Specter of Pennsylvania and John Warner of Virginia, disagreed with Bork. There were enough of them to kill his nomination.

The Bork fight was part of a cycle of retribution that went back to President Lyndon Johnson’s nomination of Associate Justice Abe Fortas to serve as chief justice in 1968.

Southern Democrats and northern Republicans combined to filibuster and kill the Fortas nomination. They opposed Fortas because he was Johnson’s close friend and was an unabashed liberal at a time when many in Congress blamed the rulings of the 1960s court for tilting the advantage to criminal defendants.

Angry that conservatives had denied a Democratic president the chance to fill two vacancies on the court, liberal Democrats joined liberal Republicans to defeat two of President Richard Nixon’s nominees in 1970, Clement Haynesworth and Harold Carswell.

Ever since the Bork battle showed the danger of having a record of strong ideological commitment, hearings have become marathon interrogations in which senators try to pin nominees down on whether they support the court’s 1973 Roe v. Wade abortion ruling or some other controversial decision. But nominees have become deft at side-stepping senators’ questions.

In 1990, President Bush seemed to choose David Souter mostly because the New Hampshire judge had expressed very few opinions on abortion or other topics on which he could be held accountable.

The following year, before Anita Hill’s allegations transformed the Thomas hearings into a melodrama over sexual harassment, there had been a fencing duel in which the nominee tried to avoid answering questions.

AVOIDING ANSWERS Thomas refused to say whether he agreed with Roe v. Wade. “To take a position would undermine my ability to be impartial,” he said, “And I have attempted to avoid that in all areas of my life after I became a judge.”

Democrats confronted Thomas with a statement he’d made supporting natural law theory — the idea that some rights are God-given and not derived from the Constitution. Thomas dismissed his natural law musings as merely a “throwaway” line from one speech.

“I thought we would finally get some answers about your views,” groused Sen. Howard M. Metzenbaum, D-Ohio. “Instead of explaining your views, though, you actually ran from them and disavowed them.”

The game of ideological catch-me-if-you-can is not the way the framers believed — or even the way many modern lawyers believe — confirmation should work.

In 1939, when he went before the Judiciary Committee, nominee Felix Frankfurter told senators that “a nominee’s record should be thoroughly scrutinized by the committee,” but the nominee himself should take no part in that scrutiny.

It would, he said, be “improper for a nominee no less than for a member of the Court to express his personal views on controversial political issues affecting the Court.”

The American Bar Association’s Model Code of Judicial Conduct says that nominees “shall not make ... statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”

Even as late as 1986, faced with Reagan’s nominee Antonin Scalia, two leading Democrats, Sen. Joseph Biden of Delaware and Sen. Patrick Leahy of Vermont said they were satisfied with his promise to not pursue an ideological crusade if he were confirmed.

Leahy noted that “Judge Scalia’s philosophy is not my philosophy. It is the philosophy of Ronald Reagan . ... (But) we should respect the mandate the president has earned.”

If there is a vacancy for Bush to fill next month, Democrats are not likely to speak of “respecting the mandate the president has earned” because many of them don’t think he earned any such mandate in the 2000 election.

The Bush v. Gore decision, in which a five-justice majority held that Florida’s Supreme Court had violated the Constitution by ordering a recount of the state’s presidential vote, will color any battle.

One way for the Democrats to assuage their 2000 election defeat would be to filibuster and keep Bush from filling a vacancy, keeping it open for the Democratic president they hope to see elected next year.