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Bush's chance to shape America's judiciary

Whether one likes to use the word “mandate” or not, the fact is that President Bush will be setting the agenda for the federal bench for the next four years and in some cases the judges he appoints will serve until at least the year 2040.
Sen. Arlen Specter, R-Pa.,  is slated to take over as the chairman of the Judiciary Committee. Carolyn Kaster / AP
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President Bush’s decisive re-election victory this week has given him the opportunity to nominate more federal judges who share his conservative views. It also gives Senate Democrats a chance to reassess their filibuster strategy in fighting Bush’s nominees.

Whether one likes to use the word “mandate” or not, the fact is that Bush will be setting the agenda for the federal bench for the next four years and in some cases the judges he appoints will serve until at least the year 2040.

Republicans say that their defeat of Senate Minority Leader Tom Daschle of South Dakota should stand as a lesson to all Democrats that blocking Bush nominees through filibusters is not a cost-free strategy.

Democrats, their numbers now reduced to 44 in the Senate, will be forced to play defense.

A key group of senators in deciding how the party should respond to Bush nominees will be Democrats from states Bush carried by healthy margins: including Ben Nelson of Nebraska, Blanche Lincoln of Arkansas, Evan Bayh of Indiana, and newly elected Ken Salazar of Colorado.

Nelson and Lincoln have already demonstrated their independence from a hard-line anti-Bush strategy. Nelson voted against the Democratic filibusters of some of Bush’s nominees, and Lincoln worked hard to round up support for conservative Bush district court nominee Leon Holmes of Arkansas.

Which way for Salazar?
Salazar, who serves as Colorado attorney general, will find himself in an intriguing position. When he ran for his Senate seat he tried to prove he wasn’t a partisan by noting that he’d joined in a letter of support with other states’ attorneys general for Bush appeals court nominee William Myers, who was blocked by Senate Democrats’ filibuster threats from getting a confirmation vote.

A key player will be sometimes liberal-leaning Sen. Arlen Specter, R-Pa., who is slated to take over as the chairman of the Judiciary Committee. Conservatives have never forgiven Specter for voting against Supreme Court nominee Robert Bork in 1987.

Specter issued what sounded like a warning to Bush Wednesday by saying, “When you talk about judges who would change the right of a woman to choose, overturn Roe vs. Wade, I think that is unlikely.”

Nan Aron, president of the Alliance for Justice, a coalition of liberal and civil rights groups that helped derail Bork’s nomination and has urged Democrats to filibuster Bush nominees, said when she head Specter’s comments, “I was very pleased, but at the same time cautious. Sen. Specter said similar things in the past but voted to confirm all of Bush’s first-term nominees, most of whom had a record of hostility to a woman’s right to choose.”

In his first term, Bush appointed and saw confirmed by the Senate 201 of his nominees to the federal bench, most of whom were district judges, who conduct trials and have less influence on the prevailing jurisprudence than appeals court judges.

Bush’s 36 appeals court nominees who were confirmed include conservative celebrities such as Michael McConnell, the former University of Chicago law professor who serves on the U. S. Court of Appeals for the Tenth Circuit, and Jeffrey Sutton, a former clerk to Justice Antonin Scalia who serves on the Sixth Circuit Court of Appeals.

Defeat for Estrada
One stinging defeat Democrats handed Bush was their filibuster that blocked a confirmation vote on Miguel Estrada, a relatively young (43) conservative star whom Bush tried to put on the appeals court for the District of Columbia circuit.

There are now 30 vacancies to be filled on the federal bench, as well as 26 Bush nominees whose nominations are pending. If the Senate adjourns for the year without having confirmed those nominees, Bush will in all likelihood submit a full slate of 56 nominees to the Senate after it convenes on Jan. 3.

The chances are good that by the end of his second term in January 2009, Bush will have appointed at least 400 judges to the bench. This would compare with 367 judges appointed by President Clinton and confirmed by the Senate and with 358 appointed by the last two-term Republican president, Ronald Reagan.

Of course, the melodrama that most observers in Washington and many in the legal community across the nation have been waiting for with a mixture of glee and apprehension has been a battle over a Supreme Court vacancy.

Chief Justice William Rehnquist, 80, recently out of the hospital after treatment for thyroid cancer, is a potential retiree.

“For the time being, the only opportunity Republicans might have is to maintain the status quo by replacing Rehnquist if he retires,” said Sean Rushton, executive director of the Committee for Justice, a conservative advocacy group. “How do you get somebody as conservative as Rehnquist? Who out there is up to his level intellectually? It’s almost surely a net loss.”

Rushton describes Rehnquist as “the godfather of the constitutionalist revolution,” which saw the High Court adopting a more limited reading of federal powers under the Commerce Clause and far more sympathy to states’ rights.

Scalia for Chief Justice?
Using Bush’s re-election to press the conservatives’ case, a Wall Street Journal editorial said Thursday that Bush “could do worse than to elevate Antonin Scalia to Chief Justice and nominate Miguel Estrada as an associate justice.”

“Wouldn’t that be wonderful?” joked Aron.

In an interview in 1999, Bush cited Scalia and Clarence Thomas, the two most conservative members of the court, as justices he especially admires.

But the qualities that make Scalia such a hero to conservatives across the country — his wit, his intellectual virtuosity, his zest for combat, and his unflinching conservatism — might make him an unsuitable or at least an unconventional choice as chief justice.

Scalia’s dissenting opinions are among the most sardonic in the history of the court and his criticism of fellow Justices Anthony Kennedy and Sandra Day O’Connor on issues such as the death penalty and state sodomy laws have been especially scornful.

One of the jobs of the chief justice is to assign the writing of opinions when he is in the majority. It might be difficult for Scalia to do the consensus building and ego massaging necessary to be an effective chief.

But John Eastman, director of the Claremont Institute Center for Constitutional Jurisprudence and a former law clerk for Thomas and Appeals Court Judge J. Michael Luttig, said Scalia “could easily step up to the role of chief justice if it were given to him.”

Eastman said in its inner daily workings, the High Court “is a pretty collegial place despite what might appear in written opinions.” He added that some of Scalia’s most caustic remarks have been directed at O’Connor, who is 74 and will likely be retiring in the next few years.

Who's on the short list?
Eastman said the rest of the short list for Supreme Court nominee has basically been the same for four years:

  • Luttig
  • Judge Edith Jones of U. S. Court of Appeals for the Fifth Circuit
  • White House Counsel Al Gonzales
  • Judge David Sentelle of the U. S. Court of Appeals for District of Columbia Circuit

Political scientist David Yalof, author of Pursuit of Justices, which is the best study of how modern presidents choose their Supreme Court nominees, said Bush may soon find himself in a position roughly analogous to previous presidents at the start of their second terms.

“An obvious parallel is with Franklin Delano Roosevelt, who like George W. Bush had no vacancies at all to fill during his first term,” Yalof said. “In both instances, there were suspicions that some Justices were strategically delaying their retirements in the hope that the other party's candidate would be elected after just one term. FDR filled five vacancies during his second term alone. A similar explosion may occur during President Bush's second term, with as many three or more justices expected to retire during the next four years.”

Yalof noted that sometimes Supreme Court choices do not turn out as the president’s allies would have liked.

“More than any other presidential candidate in recent decades, Ronald Reagan ran for office by expressly promising to appoint justices who would change the Constitutional landscape. And yet when he was greeted with a high Court vacancy just months into his first term, Reagan appointed a moderate, Sandra Day O'Connor. While a conservative on some issues, her views on controversial precedents such as Roe vs. Wade remained unclear, to say the least.”