Bloomberg News - Senate Judge Accord Leaves President Bush Latitude on U.S. Supreme Court

May 25, 2005
by Greg Stohr

May 25 (Bloomberg) -- The U.S. Senate compromise on judicial nominees leaves President George W. Bush with broad latitude to put a new conservative face on the Supreme Court, legal and political experts said.

Several members of the bipartisan group of senators who put through the compromise said yesterday they hope the agreement will prompt Bush to be more conciliatory in his approach to judicial selections.

That's not likely to happen, according to experts including Howard Gillman, a professor at the University of Southern California in Los Angeles who specializes in the Supreme Court and judicial politics. Much of Bush's political base is already calling for the next Supreme Court justice to have unquestioned conservative credentials.

"I don't think this puts any extra pressure on the White House'' to compromise, Gillman said. "What you'll see in the next battle is enormous pressure on Republican moderates'' to support a conservative nominee.

The issue may come to a head at the end of June, when the Supreme Court is scheduled to wind up its term. Chief Justice William H. Rehnquist, 80, is battling thyroid cancer and may use that occasion to announce his retirement.

Bush's potential choices to succeed Rehnquist as chief justice include two sitting justices, Antonin Scalia and Clarence Thomas, according to conservative activists including Jay Sekulow, chief counsel of the American Center for Law and Justice in Washington.

Scalia and Thomas

Scalia and Thomas dissented with Rehnquist from decisions protecting abortion rights, allowing affirmative action and limiting prayer at public schools.

Thomas, 56, almost certainly would draw Democratic opposition and possibly a bid to block a vote on his nomination. In 1991 he was confirmed for a slot as an associate justice by a 52-48 vote following an allegation that he sexually harassed a subordinate at a federal agency. He strongly denied the claim.

Scalia, 69, might have an easier road to confirmation. He was approved 98-0 by the Senate in 1986. Senate Democratic leader Harry Reid, who fought to block several of Bush's appellate nominees, suggested last year he might support Scalia's elevation.

"We expect a conservative nominee,'' Reid told reporters yesterday. "There are a lot of very fine conservative senators, conservative attorneys, conservative jurists who would be fine on the Supreme Court.''

The agreement, signed on May 23 by seven Democrats and seven Republicans, cleared the way for votes on three disputed federal appeals court nominees.

Cooperation Urged

It leaves open the possibility of a Democratic bid to block other judicial nominees through a filibuster, a parliamentary tactic that can be overcome only by the votes of 60 of the 100 senators. Republicans control the Senate 55-45. Under the agreement, filibusters would occur only under "extraordinary circumstances.''

The accord headed off a plan by Senate Republican Leader Bill Frist to invoke the so-called nuclear option, aiming to bar the use of filibusters for judicial nominations.

One of the signatories to the agreement, South Carolina Republican Lindsey Graham, said yesterday it "will require stronger collaboration by the president'' with the Senate.

"We ought not to assume that the president is going to send us someone so far out of the mainstream that that could present a problem,'' said another signer, Nebraska Democrat Ben Nelson.

Analysts questioned whether the accord would affect the political calculations that go into Bush's Supreme Court selections.

Lacking the Votes

"I don't think it changes it at all,'' said Stuart Rothenberg, editor of the non-partisan Rothenberg Political Report in Washington. ''It's something that a dozen-plus senators agreed to. It doesn't bind the president.''

Indeed, Nelson and Rhode Island Republican Lincoln Chafee, a Republican who opposed the nuclear option, said opponents probably lacked the votes to stop such a maneuver.

If that tally carries over to a Supreme Court nomination, Bush would have more leverage to select a conservative along the lines of Judges Michael Luttig of the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals and Samuel Alito of the Philadelphia-based 3rd Circuit. Both have voted to limit the power of Congress to regulate local affairs and allow restrictions on abortion.

"When a Supreme Court nomination comes up, they'll try to get as much as they can,'' Gillman said. "This is not a White House that is going to sit down and bargain with the moderates in advance about who they'd find acceptable.''

Court May Shift

Other possibilities for the high court include appellate Judges J. Harvie Wilkinson of the 4th Circuit in Richmond, John G. Roberts Jr. of the D.C. Circuit and Michael McConnell of the Denver-based 10th Circuit. Like the other top candidates, all three were appointed by Republican presidents.

Ultimately, the most important factor in Bush's decision may be the identity of the departing justice, said lawyer Carter Phillips, who has argued 45 cases before the high court.

Democrats might be more willing to allow a staunch conservative replacement for Rehnquist than for Sandra Day O'Connor, 75, or John Paul Stevens, 85, Phillips said. Both O'Connor and Stevens have supported abortion rights, affirmative action and gay rights.

"I would think that from a Democratic perspective if either Justice Stevens or Justice O'Connor leaves, that would be the quintessential 'extraordinary circumstance,''' said Phillips, a partner at Sidley Austin Brown & Wood in Washington. "The potential balance of the entire court would shift.''