Bloomberg News - Justices Scalia and Thomas Among Possible Replacements for Chief Justice Rehnquist

February 9, 2005
by Greg Stohr in Washington, D.C.

(Bloomberg) -- U.S. President George W. Bush's first Supreme Court nominee will have conservative credentials. Beyond that, it's anybody's guess.

Bush may get the chance to choose a new chief justice this year -- 80-year-old William H. Rehnquist is suffering from thyroid cancer -- and make other appointments before his second term ends. The list of possible Rehnquist replacements reads like a dream team for groups seeking to ban abortion and curb the regulatory power of the federal government.

Those names include current Justices Antonin Scalia and Clarence Thomas and federal appeals court judges J. Harvie Wilkinson, Michael Luttig, Michael McConnell and John Roberts.

"They'd all be excellent," said Jay Sekulow, whose American Center for Law and Justice has stockpiled $2.5 million to wage a campaign in support of Bush's eventual choice. "There's not one on there I'd be worried about."

A Rehnquist departure, nonetheless, would present Bush with a series of fundamental choices that would shape American law and politics for decades to come.

Should he choose a consensus builder or ideological agenda setter? A veteran jurist or a 50-year-old who might serve for 30 years? A fresh face or a sitting justice? Someone likely to pick up bipartisan support or a nominee who might provoke an unprecedented Democratic effort to block a Senate vote?

"It depends on what you want," said James F. Simon, a New York Law School professor who wrote a book about the Rehnquist court in 1995. "Do you want a judge or an ideologue?"

Scalia and Thomas

Perhaps the most basic question Bush must resolve is whether to elevate either Scalia or Thomas to chief justice, two members of the court he has singled out for praise. That would leave a vacancy for associate justice.

Promoting Scalia, 68, or Thomas, 56, would prove popular in many conservative circles. Both are ardent critics of Supreme Court decisions protecting abortion rights, allowing affirmative action and limiting prayer at public schools. They have joined decisions limiting the power of Congress.

The problem is that neither man has shown much aptitude for the internal court politics at which Rehnquist has excelled, said Clint Bolick, co-founder of the Washington-based Institute for Justice, which advocates for property and speech rights.

Each justice prefers to write far-reaching opinions and at times uses scathing rhetoric, as when Scalia said Justice Sandra Day O'Connor's views in a 1989 abortion case "cannot be taken seriously," without having to compromise to win more votes.

"Most folks, myself included, are not inclined to see Scalia or Thomas as consensus-builders," Bolick said. "I don't think that's a role that either Thomas or Scalia would particularly enjoy."

An 'Embarrassment'

The prospect of a Chief Justice Thomas might spark an especially nasty battle in the Senate, where Democrats blocked votes on 10 lower court nominees during Bush's first term.

Senate Democratic Leader Harry Reid of Nevada in December called Thomas an "embarrassment to the Supreme Court." Earlier, Senator Charles Schumer, a New York Democrat on the Judiciary Committee, said Thomas "would probably evoke a fight."

Critics of Thomas point to his rejection of some of the court's long-held positions. Last year Thomas said the Constitution's ban on government establishment of religion should apply only to the federal government, not to the states.

"Thomas in some ways has been even more explicit and blunt" than Scalia on overturning previous decisions, said Elliot Mincberg, legal director for the People for the American Way, which plans to spend millions of dollars to oppose Bush's eventual nominee.

Reviving Controversy

A Thomas appointment also might revive the controversy that dominated his nomination to the court in 1991, when former coworker Anita Hill accused him of sexual harassment. A Democratic- controlled Senate confirmed him 52-48.

A Scalia selection, meanwhile, would invite questions about his refusal to remove himself last year from a case involving Vice President Dick Cheney. Scalia rejected calls to step aside following disclosure that he had flown on Air Force Two, the vice president's plane, for a duck-hunting trip that included Cheney.

On the other hand, elevating Scalia or Thomas might deflect criticism from the prospective new justice. That happened in 1986 when Rehnquist's elevation to chief justice by President Ronald Reagan divided the Senate while Scalia won unanimous confirmation as an associate justice.

Filibuster

Republicans have 55 seats in the Senate and need 60 votes to cut off a filibuster, the tactic used to prevent a roll call vote. Although no Supreme Court nominee has ever been subject to a filibuster, both sides are preparing for the possibility.

"The Democrats are going to filibuster with a vengeance almost anybody the White House nominates," said C. Boyden Gray, who served as White House counsel under President George H.W. Bush and, along with Sekulow, is part of a group that has been meeting to plot strategy for promoting a nominee.

A vacancy would be the court's first since 1994, ending the longest period without change since 1823.

In contrast to Scalia and Thomas, Wilkinson has built a reputation as a master of collegiality on the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, according to Bolick and other court watchers. Wilkinson, 60, draws frequent comparisons to his onetime boss, former Justice Lewis Powell, a fellow Virginian who preferred case-by-case adjudication to sweeping principles.

Voting Record

His demeanor aside, Wilkinson's voting record may be as conservative as any potential nominee. In 2002, the law journal Judicature concluded Wilkinson was the most conservative of six high court candidates studied.

"He's a particularly strong candidate," Bolick said. "He's a strong conservative and yet someone who is willing to build bridges to get a majority."

Wilkinson's biggest liability as a candidate might be one he shares with Scalia: age. Although seven of the last eight chief justices were in their 60s when appointed -- 56-year-old Fred Vinson was the exception -- some groups are pushing for a more youthful nominee.

"The younger they are, the longer they can serve," Sekulow said. "It'd sure be great to have someone in their late-40s or mid-50s."

Younger Options

Bush's younger options include Luttig, 50, who sits on the 4th Circuit with Wilkinson; Roberts, 50, whom Bush appointed to the D.C. Circuit; and McConnell, 49, another Bush appointee who serves on the 10th Circuit in Salt Lake City.

Luttig, a former Scalia law clerk and official in the first Bush administration, has voted to limit the scope of the Endangered Species Act and suggested he would overturn the 1973 Roe v. Wade decision that legalized abortion nationwide. Some court watchers say Luttig's personality and philosophy would make him a better choice to be an associate justice than chief.

"Mike Luttig has been more in the Scalia mold, willing to be happy in dissent without compromise," Bolick said. "And for that reason, it may make him a more popular nominee among movement conservatives."

Roberts and McConnell won praise from Republicans and Democrats alike for their likeability and candor during confirmation hearings for their appeals court seats.

As an appeals court nominee, McConnell faced outside opposition that focused on his criticism of Roe v. Wade and Bob Jones University v. U.S., a 1983 ruling letting the Internal Revenue Service strip the charitable tax exemption of a college that banned interracial dating.

Democratic Doubts

The Senate approved McConnell by voice vote after he promised those views wouldn't affect his decisions as an appellate judge. Several Democratic senators said they might not back McConnell as a Supreme Court nominee.

Roberts, a private litigator before joining the D.C. Circuit court in 2003, has the least-developed track record of any prospective nominee. That may concern conservative groups still resentful over President George H.W. Bush's 1990 nomination of David Souter.

Souter joined the Supreme Court with little in the way of a paper trail, then proved to be a champion of gay rights, abortion rights, church-state separation and limits on the death penalty.

"There has to be something that can justify our support," said Jayd Henricks, congressional relations director at the Family Research Council, without specifically discussing Roberts. "We're not going to simply give the president a pass."

Conservative Credentials

Roberts carries conservative credentials as a onetime Rehnquist law clerk and deputy solicitor general under the first President Bush. In the latter role, he signed a government brief that said the high court should overturn Roe v. Wade.

Other possible nominees mentioned by prominent Bush administration allies include federal appeals court judges Emilio M. Garza, 57, Samuel Alito, 54, and Edith Jones, 55; California Supreme Court Justice Janice Rogers Brown, 55; and U.S. Senator Jon Kyl, 62. Garza would be the court's first Hispanic member.

Opposition is guaranteed regardless of the choice. "All of the ones that have been mentioned are very, very troubling," Mincberg said.

The precise state of Rehnquist's health hasn't been made public. He swore in Bush at his second term inauguration on Jan. 20 and departed before the president delivered his inaugural address. Rehnquist's last appearance at a public Supreme Court session was on Oct. 18.