Bush Re-Election Fuels Speculation Over Makeup of Supreme Court

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The New York Sun

WASHINGTON – With a decisive victory at the polls and an enhanced Republican majority in the Senate, President Bush is poised to reshape a Supreme Court that has gone a decade without a vacancy.


The president’s backers said he had earned a “moral mandate” to appoint conservative judges to the court, while Democrats braced for the worst.


The president’s re-election means “a generational shift to the right for our judiciary and the domination of the United States Supreme Court by justices who will not protect a woman’s right to choose,” predicted Rep. Anthony Weiner, a Democrat of New York.


The fact that the president is entering a second term will make his choices freer, said a former associate White House counsel who also participated in the judicial selection process for the Clinton administration’s appointments, William Marshall.


“He doesn’t have to worry about reelection, and he has more of a cushion,” said Mr. Marshall, a professor of law at the University of North Carolina.


Whether the president can etch his own legacy onto the face of the court will depend on which, if any, of the judges retire in the next four years.


Speculation has centered on the possible retirement of Chief Justice Rehnquist, who is battling thyroid cancer at the age of 80. But his replacement by another conservative judge would not alter the voting balance of three conservative judges, four liberals, and two frequent swing voters.


“It remains to be seen whether or not any true moderate or liberal will step down or have health problems that take them out of office, so that the president would have the opportunity to actually change the court’s makeup substantially,” said Sean Rushton, the executive director the Committee for Justice, a group that advocates for conservative judicial nominees.


The president would likely face his toughest battle in the Senate if he tried to appoint a conservative to a seat held by a moderate or a liberal, such as the court’s eldest member, 84-year-old Justice Stevens.


“I think there will be a token kabuki struggle over a Rehnquist replacement. I think the real struggle will come if you have a moderate or a liberal retire,” predicted Mr. Rushton.


Some conservatives say if ever there was a time to make that change, it would be in the next four years.


On a pragmatic level, the gain of four Republican seats in the Senate could make it more difficult for Democrats to block the president’s nominees, even though 55 Republican senators are still short of the 60 necessary to overcome the filibusters that Democrats have used to delay votes on several of the president’s nominees to federal courts.


The defeat of the minority leader of the Senate, Thomas Daschle of South Dakota, who was considered more liberal than his constituents and attacked for his role in blocking the president’s federal court nominees, could make Democratic senators from less liberal states reluctant to fight against socially conservative judges.


“I could imagine five or 10 Democratic senators from red states saying, ‘Look, I can’t go along with this. I’m going to get sucked down the tubes just like Daschle if I keep siding with the liberal left’s cultural agenda,'” Mr. Rushton said.


On a deeper level, conservatives saw the election results as giving the president a moral mandate to appoint judges who will entrench traditional values and decline to give liberal interpretations to constitutional rights. They pointed to 11 states that voted Tuesday to define marriage as an exclusively heterosexual institution, and opinion polls showing that most Bush voters were motivated in part by cultural reasons.


A former education secretary and a commentator on social values, William Bennett, called yesterday for the president to begin a “national cultural renewal…no less in legislation than in federal court appointments.”


“It is, after all, the main reason George W. Bush was re-elected,” he wrote in the National Review online.


Others rejected the notion of a mandate. “The president today said he wanted to reach out to all Americans, including those who didn’t vote for him. A good way to show that would be to nominate mainstream candidates to the judiciary,” said Senator Schumer, who sits on the Judiciary Committee and has taken a lead in fighting some of the president’s most conservative nominees.


Mr. Marshall said the election shows that the country is still highly divided.


“Although (the president’s) political leverage has been improved by the gains in the Senate, there seems to be a lack of any major consensus on the overall direction the United States should take – much less the Supreme Court,” Mr. Marshall said.


As for the Democrats, “I do not see their resolve weakening one bit,” said the president of the Alliance for Justice, a group that advocates for liberal judicial appointments, Nan Aron.


Republicans “are engaging in some wishful thinking if they think they’ve got any more of a mandate on filling judgeships with rigid ideologues,” she said.


Many of the names frequently mentioned as possible Bush nominees have been targeted by liberal groups for their past opinions or records in government.


They include White House Counsel Alberto Gonzales, who has been criticized by liberal groups for his role in developing the administration’s policy on detainees.


Two members of the U.S. Court of Appeals for the Fourth Circuit, Judge J. Harvie Wilkinson III and J. Michael Luttig, have long been considered possible choices. Judge Wilkinson served as clerk to the late Justice Powell, while Judge Luttig is a former clerk to Justice Scalia. Both have been criticized by liberal groups for restricting abortion rights.


Another potential candidate is Janice Rogers Brown of the California Supreme Court. Mr. Bush nominated her to the U.S. Court of Appeals for the D.C. Circuit, despite criticism that she has opposed affirmative action.


The New York Sun

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