Sacramento Bee - President Bush Ponders Strategy for Supreme Court

September 5, 2005
by: James Rosen,  Bee Washington Bureau

(Washington) - President Bush paid tribute to Supreme Court Chief Justice William Rehnquist on Sunday as a man of "deep devotion to duty," and indicated he will not wait long to choose a new leader of the nation's highest court.

Rehnquist's death Saturday night, just days before Senate confirmation hearings for John Roberts, set off a scramble in Washington Sunday and presented Bush a historic opportunity to put his stamp on the Supreme Court for decades to come.

As he contemplates his second court vacancy to fill, Bush is considering a plan to install Roberts as chief justice rather than as associate justice replacing retiring Sandra Day O'Connor, senior administration officials told the Washington Post. With the Roberts vetting process already well advanced and his confirmation on track, such a shift could guarantee a chief justice would be in place by the time the court opens its term Oct. 3.

A switch like that would be unprecedented in modern times. If the president does not opt for that course, officials said, he will return to the same list of potential candidates he scrutinized in picking Roberts in July.

Among those at the top of such a list would be appeals court judges such as Edith Clement or Edith Jones of New Orleans (if Bush decides to appoint a woman) or longtime friend Alberto Gonzales, the U.S. attorney general (if he opts to make history by appointing the first Latino to the court).

Other possible entries on Bush's short list were J. Michael Luttig and J. Harvie Wilkinson, both appeals court judges in Richmond, Va.

Some Democratic members of the Senate Judiciary Committee called for at least a brief postponement of Roberts' confirmation hearings, scheduled to start Tuesday. But Bush signaled a desire to move quickly.

"There are now two vacancies on the Supreme Court, and it will serve the best interests of the nation to fill those vacancies promptly," Bush said. "I will choose in a timely manner a highly qualified nominee to succeed Chief Justice Rehnquist."

Bush, who noted that Rehnquist graduated at the top of a Stanford University Law School class that included O'Connor, has a number of options. Beyond the timing of his choices, he could ask O'Connor to delay her retirement and remain on the court for a period as acting chief justice, though she has expressed a strong desire to return home to Arizona to care for her ailing husband.

O'Connor on Sunday called the chief justice's death "an earthquake for the court."

Noting that she has made her retirement contingent on the confirmation of a successor, she said she has not yet decided what she might do if the first Monday in October dawns and her seat has not been filled. It would be, she said, a "surprising dilemma."

Bush has spoken glowingly of the court's two most conservative justices, Clarence Thomas and Antonin Scalia, but a number of analysts said both would face brutal Senate confirmation battles if Bush tried to promote either of them.

"I think there is a good chance Bush will nominate someone from outside the court to be chief justice," said Robert Sedler, a constitutional law professor at Wayne State University in Detroit.

"Scalia would be a good choice because he is well liked by other members of the court, but he is so far out (as a conservative) that he would be an easy target. Bush wants a conservative who will not face a lot of controversy."

After the first President Bush nominated him in 1992, Thomas endured a bitter confirmation fight over sexual-harassment allegations from a former aide, Anita Hill.

For Bush, the situation represents a rare chance to cement a more conservative court, and his own legacy at the same time. No sitting justice has died in office in more than a half-century and no president has installed two newcomers to the court at the same time since 1971, when Richard Nixon first appointed Rehnquist to fill one of a pair of vacancies.

When Ronald Reagan tapped Rehnquist to move up from associate justice to chief justice in 1986, he filled the new associate justice position with Antonin Scalia. If Bush followed suit by elevating Scalia or Clarence Thomas to chief justice, it would mean three confirmation battles at once.

"This is the most historic moment in Supreme Court history in our lifetime, no question about it," said Jay Sekulow, chief counsel at the American Center for Law and Justice, founded by evangelist Pat Robertson, and an adviser to the White House on court issues. "These are justices who are going to serve for decades."

The chief justice casts only one vote on the nine-member court but wields influence in important ways. As the titular leader, the chief justice can try to set a tone and philosophical direction. When in the majority on a case, the chief chooses which justice writes the decision. The chief also runs the court's administrative functions as well as those of the broader federal judiciary.

Despite Bush's hint of quick action, there were calls Sunday for a pause. Sen. Harry Reid of Nevada, the Senate Democratic leader, joined other prominent senators from his party in asking their Republican counterparts to put off the Roberts hearing at least until after Rehnquist's funeral this week, and in the wake of the devastation from Hurricane Katrina.

Rehnquist, Reid said, "led the federal judiciary with great dignitary and clarity," and the country should be able to remember him without the disruption of a partisan confirmation hearing.

"Out of respect for the memory of Chief Justice Rehnquist and in fairness to those whose lives continue to be devastated by Katrina, the Senate should not commence a Supreme Court confirmation hearing this Tuesday," Reid said. "A brief postponement will not disadvantage anyone."

Sen. John Cornyn, a Texas Republican and Judiciary Committee member, said the panel's chairman, Sen. Arlen Specter of Pennsylvania, and Senate Majority Leader Bill Frist were weighing a short delay in the hearings. Frist has scheduled a Senate vote on Roberts for the week of Sept. 26, just before the Supreme Court begins its fall term.

Cornyn and Sen. Orrin Hatch, a Utah Republican and former Judiciary Committee chairman, urged Bush to move forward on both nominations without delay.

"The longer he waits, the more difficult it's going to be to get anybody through," Hatch told ABC's "This Week" program.

Bush, who ordered flags at federal buildings flown at half-staff, recalled Sunday how touched he was when, at his second inauguration in January, the ailing Rehnquist swore him into office. Diagnosed with cancer last October, Rehnquist walked with a cane and used a breathing tube at the swearing-in.

"He was extremely well respected for his powerful intellect," Bush said. "He was respected for his deep commitment to the rule of law and his profound devotion to duty. He provided superb leadership for the federal court system, improving the delivery of justice for the American people and earning the admiration of his colleagues throughout the judiciary."