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easymoney101

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Thursday, 09/30/2004 10:21:04 AM

Thursday, September 30, 2004 10:21:04 AM

Post# of 472946
The next president could tip high court
By Joan Biskupic, USA TODAY

WASHINGTON — It was a common theme during the 2000 campaign for president: The winner of the election could get to fill as many as three seats on the Supreme Court, and potentially reshape the law for decades.

Eight of the justices on the Supreme Court are now at least 65 years old.
By Tim Dillon, USA TODAY

It didn't turn out that way. Not one of the nine justices on the narrowly divided Supreme Court has retired during George W. Bush's presidency, and he likely will join Jimmy Carter and Franklin Roosevelt as the only presidents in the past century to complete a first term without making an appointment to the court. Carter served just one term; Roosevelt wound up appointing nine justices in his 12 years in office.

This election's potential impact on the Supreme Court has seemed to be an afterthought, as Bush and Democrat John Kerry have battled over the war in Iraq, terrorism and the economy.

But the stakes for the court and the law are even higher now than they were in 2000. The prospect of a change on the court is greater — eight of the justices are now at least 65 — and the replacement of even one justice could affect the law on issues such as abortion rights, affirmative action and religion's role in government.

"The next president will set the direction of the Supreme Court not for just four years, but for four decades," says Nan Aron of Alliance for Justice, a liberal group that monitors judicial nominations.

Precisely how the next Supreme Court nomination will play out is anyone's guess. Much would depend not only on the president and the nominee, but also on the politics of the day and which justice was being replaced. But interviews with more than two dozen legal and political insiders in both parties make it clear that:

•If he's re-elected, Bush would seek a conservative high court nominee similar to Justice Antonin Scalia, an outspoken voice of the right on the current court.

Bush has shown he is willing to engage in a nasty confirmation battle in the divided Senate, which must approve court nominees.

Since he took office in 2001 and began nominating judges for key lower courts, Bush has pushed prominent conservative thinkers with strict views of constitutional rights. Several of his nominees have spurred protests by civil libertarians, women's rights advocates and environmentalists.

That has led to a record number of Senate filibusters of appeals court candidates, says Sheldon Goldman, a political science professor at the University of Massachusetts, Amherst, who tracks judicial nominations.

Republicans hold 51 of the 100 seats in the Senate. But 60 votes are needed to end a filibuster and allow an up-or-down vote on a nominee. Democrats have used filibusters to block votes on 10 — or about one-fifth — of Bush's nominations for U.S. appeals courts, the level below the Supreme Court.

Lawyers connected to the Bush White House say that despite the possibility of continued filibusters by Senate Democrats, Bush is not likely to select a moderate high court nominee to try to win Democratic support.

COURT SPLITS ON ISSUES
The court is closely divided on several issues. Here are a few in which the change of a single justice could alter the court's position:
Abortion: Six justices (Stevens, O'Connor, Kennedy, Souter, Ginsburg and Breyer) support abortion rights, while three justices (Rehnquist, Scalia and Thomas) consistently have voted against a woman's right to end a pregnancy. But in 2000, when the court struck down state bans on a procedure that critics call "partial birth" abortion, the vote was 5-4, with Kennedy joining Rehnquist, Scalia and Thomas in dissent. It's unlikely that the right to abortion will be overturned, but the change of a single justice could lead to greater regulation of abortion - or further secure a woman's right to it.
Affirmative action: In 2003, the justices upheld affirmative action in college admissions by a single vote. Favoring admission policies that give a boost to racial minorities under certain conditions were Stevens, O'Connor, Souter, Ginsburg and Breyer. The swing vote was O'Connor, who in other cases had been the key fifth vote to strike down racial preferences in federal contracting and to impede the creation of "majority minority" congressional districts. Such districts have been drawn specifically to consolidate black or Hispanic voters to try to boost their political power.
Separation of church and state: By a 5-4 vote in 2002, the justices upheld publicly financed "vouchers" for parents who want to send their children to religious schools. In the majority were Rehnquist, O'Connor, Scalia, Kennedy and Thomas. Two years earlier, the court's liberals led the way as the justices voted 6-3 to strike down pre-kickoff prayers at high school football games. Rehnquist, Scalia and Thomas dissented.
Federal vs. state power: The court's conservatives (Rehnquist, O'Connor, Scalia, Kennedy and Thomas) repeatedly have protected states from federal intervention in several areas. The court, for example, has prevented state workers who face discrimination because of age or disability from suing their employers for money damages under federal laws. Last term, however, O'Connor switched positions in a states' rights case to allow people with disabilities to sue states for access to courthouses under the Americans with Disabilities Act.
By Joan Biskupic, USA TODAY






"This is a matter of principle for the president," says Bradford Berenson, former associate White House counsel for Bush. "If he didn't give in to those kind of threats in his first term, why would he do it after an election to a second term? His position will be stronger, not weaker."

At the Republican National Convention last month, Bush said, "I will continue to appoint federal judges who know the difference between personal opinion and the strict interpretation of the law."

•If Kerry is elected, he would seek a more conciliatory approach, and try to avoid nominating a liberal who would anger many Republicans. But he would face a partisan battle anyway.

Kerry "has talked about working to end the gridlock," says Robert Gordon, the Democrat's director of domestic policy. "The high level of partisanship doesn't serve the American people. Consultation (with senators) does not give up your rights as president. It's the way to make the system work."

Still, Republican resentment of the Democratic filibusters of Bush nominees lingers, and the GOP is warning that there will be payback if Kerry is elected.

"There's more bitterness in the process now than four years ago," says Democratic lawyer Ronald Klain, who helped guide several of President Clinton's judicial nominees to confirmation and is an informal adviser to Kerry. "No matter who's nominated, it's going to be a heavy lift."

Gordon says it is premature to discuss potential Democratic nominees. But he notes that Kerry has quoted the late Justice Potter Stewart, who said that a good judge gives opinions that provide "no idea if the judge was a man or a woman, Republican or Democrat, Christian or a Jew."

However, Kerry also has said that any nominee of his would have to support Roe vs. Wade, the 1973 Supreme Court ruling that made abortion legal nationwide. (Six justices on the court support abortion rights, but they include Anthony Kennedy, who has voted for greater regulation of abortion.)

Kerry's stance on abortion rights could add a layer of tension to what would be a difficult confirmation process.

•Regardless of who wins the presidency, there will be a strong push to give the Supreme Court its first Hispanic justice.

There now are more than 35 million Hispanics in the USA, and they represent the nation's fastest-growing minority group. Hispanic groups are planning to lobby aggressively for one of their own on the court.

Presidents often look for a distinctive characteristic in a nominee that could resonate with the American people and make history. Lyndon Johnson won praise for appointing the court's first African-American member, Thurgood Marshall, in 1967.

Ronald Reagan took pride in saying that he had nominated the first female justice, Sandra Day O'Connor, in 1981.

During Bush's first term, Republican insiders suggested that White House counsel Alberto Gonzales, a longtime friend of the president, would have a leg up on any nomination to the court. But Gonzales' prospects may have dimmed since he was drawn into the scandal over the abuse of Iraqi detainees by U.S. soldiers at the Abu Ghraib prison in Baghdad.

Gonzales, 49, wrote a memo in 2002 that said foreign fighters captured in Afghanistan were not entitled to protections under the Geneva Conventions.

Some members of Congress and human rights groups said that memo might have helped lead to abusive interrogation techniques at Abu Ghraib.

Gonzales said there is no link between his memo on Afghanistan and prisoners of war in Iraq, but even Gonzales' supporters say that nominating him would be more difficult now because it would lead to more scrutiny of the Abu Ghraib scandal. Still, Gonzales, whose office has created a "short list" of potential Bush nominees, is likely to play a key role in determining whom Bush would choose.

Emilio Garza, a U.S. appeals court judge in Texas, often is mentioned by Republican insiders as being on Bush's list. Garza, 57, has drawn fire from women's rights groups because he has criticized the Roe vs. Waderuling and has said that states, not the federal government, should regulate abortion.

Democratic lawyers who follow nomination politics say that U.S. appeals court Judge Sonia Sotomayor, 50, of New York, would be a top contender for a Kerry appointment. Sotomayor, who is of Puerto Rican descent, is known as a moderate jurist and could represent a bipartisan choice: She was tapped for a U.S. trial court seat by the first President Bush, then elevated to the appeals court by Clinton.

One vacancy could alter court

The current Supreme Court has been together for 10 years, the longest stretch the court has gone without a new member since 1812-1823. None of the justices has indicated any immediate plans to retire, but many analysts who watch the court closely believe that change is likely during the next presidential term.

Clarence Thomas, who is 56 and is perhaps the most conservative justice, is the only one younger than 65. Most of the speculation over retirements has focused on the three oldest members: Chief Justice William Rehnquist, a conservative who will be 80 on Friday; John Paul Stevens, 84, who votes with the court's four-member liberal wing, and Sandra Day O'Connor, 74.

O'Connor is a moderate conservative who is widely viewed as the most influential justice because she has voted with the liberals to form majorities in several key rulings, including decisions that upheld abortion rights and preserved racial preferences in college admissions.

Rehnquist and Stevens are at opposite poles of the court. Rehnquist, a Nixon appointee in 1972 who was elevated to chief by Reagan in 1986, generally favors law enforcement over defendants' rights, opposes affirmative action and seeks to limit federal power in favor of states' rights. Stevens, a Ford appointee in 1975, is a defender of prisoners' rights, access to abortion and a high wall of separation between church and state.

A departure by any of the justices could have broad consequences in the law. If Bush were to pick a replacement for Stevens, for example, it could mean greater restrictions on abortion and affirmative action, among other things. But if Kerry were able to replace Rehnquist, the court could swing to the liberals' favor, and abortion rights and affirmative action policies could get more protection.

There are several competitive Senate races this fall, and the ultimate balance of power in the chamber would also affect any nomination.

Bush's nomination of Miguel Estrada to the U.S. Circuit Court of Appeals for the D.C. Circuit, a traditional steppingstone to the Supreme Court, reflected how divisive judicial nominations can be. Estrada was nominated in 2001, and his name was pending for more than two years.

Republican leaders rounded up 55 Senate votes in support of Estrada, a Honduran-born, Harvard-educated lawyer in Washington. But Democrats held up the nomination with seven filibusters before Estrada asked that his name be withdrawn in 2003. Democrats said Estrada was too conservative, and that he had not sufficiently pushed the administration to release internal memos he had written as a government lawyer.

Would Senate block Hispanic?

Boyden Gray, who was White House counsel to the first President Bush and is close to the current administration, says the Estrada episode could have consequences for Kerry.

"The Democrats were so keen on blocking Miguel Estrada and others," Gray says. "If Kerry wins, they shouldn't be surprised to see their key people blocked."

Although the nomination of Estrada for the D.C. Circuit appeals court failed, he could resurface as a provocative contender for the Supreme Court if Bush is re-elected to office.

Some Bush advisers figure it would be difficult for Democrats to block a Senate vote on the first Hispanic nominee to the high court, and Estrada remains a favorite among influential conservatives in Washington.

University of North Carolina law professor William Marshall, a former special adviser to the Clinton Justice Department who now works with Democratic activists on legal issues, says Kerry is likely to take a page from Clinton's playbook and seek candidates acceptable to key Republicans.

In an effort to avoid fights on the Senate floor over his nominees, Clinton ran some of their names by key Republicans, including Orrin Hatch, who was then the Judiciary Committee chairman. Clinton's two Supreme Court nominees — Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994 — were confirmed easily.

"I think Kerry would try to go for a moderate," says Marshall, add

Some potential nominees for the Supreme Court
If Kerry is elected
Potential nominee Education The lowdown
Jose Cabranes, 63, U.S. appeals court judge, 2nd Circuit (New York, Connecticut, Vermont) Columbia University, A.B.; Yale University, J.D. A moderate jurist whose name has long been in play for a Supreme Court spot during Republican and Democratic administrations. Has a middle-of-the-road record that could please some Republicans but draw opposition from liberal Democrats. Because presidents like to appoint justices who could have an impact for many years, his age could be a liability. But Hispanic heritage is a plus.
Walter Dellinger, 63, partner, O'Melveny and Myers; law professor, Duke University University of North Carolina, A.B.; Yale University, J.D. Former acting solicitor general during the Clinton administration is well-regarded among top Democrats. As with Cabranes, age could be a liability. Dellinger's association with liberal causes might be a red flag for conservative senators.
Merrick Garland, 51, U.S. appeals court judge, D.C. Circuit Harvard College, A.B.; Harvard University, J.D. Approved for current post with bipartisan support at a time when the GOP was protesting Clinton nominees. As an associate deputy attorney general, oversaw the probe into the 1995 Oklahoma City bombing, which could make him an appealing post-9/11 nominee. Lacks poignant life story that a minority or female nominee might offer; could be a compromise choice.
Sonia Sotomayor, 50, U.S. appeals court judge, 2nd Circuit Princeton University, A.B.; Yale University, J.D. The first President Bush put Sotomayor on a federal trial court in 1992, then President Clinton elevated her to the appeals court in 1998, so she likely would have support in both parties. Known as a moderate on the bench; Puerto Rican heritage is a plus.
Kathleen Sullivan, 49, law professor, Stanford University Cornell University, B.A.; Harvard University, J.D. Widely published scholar. She has been involved in an array of legal causes and opposed campaign finance regulation on free-speech grounds. Her work in support of abortion rights and privacy interests could draw conservative fire.
David Tatel, 62, U.S. appeals court judge, D.C. Circuit University of Michigan, B.A.; University of Chicago, J.D. Former civil-rights lawyer was appointed by Clinton to the appeals court. Lost his sight as a young adult to a degenerative eye disease.
If Bush is elected
Potential nominee Education The lowdown
Samuel Alito, 54, U.S. appeals court judge, 3rd Circuit (Delaware, New Jersey, Pennsylvania) Princeton University, A.B.; Yale University, J.D. A former Reagan administration lawyer nicknamed "Sc'Alito" because he has a sharp, conservative pen like Justice Antonin Scalia. Women's rights groups likely would oppose Alito because he voted to uphold abortion regulations, including a Pennsylvania requirement that women tell their husbands before having an abortion. The Supreme Court struck down the law in 1992.
Miguel Estrada, 42, partner, Gibson, Dunn & Crutcher Columbia University, B.A.; Harvard University, J.D. His nomination to the D.C. Circuit appeals court was shot down by Senate Democrats' filibusters. But Bush advisers remain high on him and believe he could win a high court seat in a Senate vote. Estrada was born in Honduras and came to the USA at 17. For Bush, he would be a high-risk nominee.
Emilio Garza, 57, U.S. appeals court judge, 5th Circuit (Louisiana, Mississippi, Texas) University of Notre Dame, B.A.; University of Texas, J.D. Was considered by the first President Bush as a potential Supreme Court nominee and is a leading contender to be the first Hispanic justice. Like Alito, he could draw opposition from women's rights groups. He has criticized Roe vs. Wade, the 1973 ruling that made abortion legal nationwide, and has said that regulating abortion should be left to the states.
Alberto Gonzales, 49, White House counsel Rice University, B.A., Harvard University, J.D. Longtime friend of President Bush. As Texas governor, Bush named Gonzales secretary of state and then put him on the Texas Supreme Court. Gonzales has been point man for the administration's efforts to keep information secret and preserve presidential prerogatives. Some conservatives are suspicious of him because of moderate positions he has taken on affirmative action and abortion. He drew criticism for a 2002 memo he wrote that said foreign fighters captured in Afghanistan were not entitled to prisoner-of-war protections under the Geneva Conventions. Once viewed as a front-runner for a nomination; now the odds seem longer.
Michael Luttig, 50, U.S. appeals court judge, 4th Circuit (Maryland, North Carolina, South Carolina, Virginia, West Virginia) Washington & Lee University, B.A.; University of Virginia, J.D. Another high-risk nominee because he is as fiery and frank as Scalia, for whom he once was a law clerk. In 1998, Luttig allowed a Virginia ban on a procedure that critics call "partial-birth" abortion to take effect while it was being challenged as unconstitutional. Luttig then voted to uphold the law. After the Supreme Court struck down a similar ban in 2000, Luttig wrote that the Virginia law effectively had been invalidated.
J. Harvie Wilkinson, 60, U.S. appeals court judge, 4th Circuit Yale, B.A.; University of Virginia, J.D. A conservative whose approach is more moderate than his 4th Circuit colleague, Luttig. Wilkinson wrote a book on racial divisions in the USA that argued that many affirmative action policies, including racial preferences in college admissions, drive a wedge between people of different races.
Reporting and analysis by Joan Biskupic, USA TODAY. Additional source: Judicial Staff Directory, CQ Press; Martindale-Hubbell law directory




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