Skip to comments.Supreme Court - White House Calculus
Posted on 12/10/2004 1:53:10 PM PST by Lando Lincoln
President Bush began his first term amid widespread predictions that he would have the opportunity to put his stamp on the nation's top court by nominating perhaps as many as three justices. After all, the Court had not had a vacancy since 1994. And the inauguration of the first Republican president in eight years was thought to be just the nudge that some aging Republican justices needed to step down.
Instead, the Court's membership remained unchanged. Not since the 1820s has the Supreme Court's lineup been so stable for so long. One theory about the Court's unexpected continuity is that Sandra Day O'Connor, who in late 2000 had been considered the justice most eager to retire, felt it might look improper for her to leave -- and give Bush the power to appoint her successor -- soon after helping him win the White House by siding with the majority in Bush v. Gore. Then, less than a year into Bush's presidency, the 9/11 attacks severely rattled the nation, giving the life-tenured justices additional incentive to maintain their Court's stability, especially since any resignation from the closely divided Court would likely spark a major political firestorm.
Because he won re-election, Bush will probably avoid becoming the only full-term president other than Jimmy Carter never to name anyone to the Supreme Court. Court-watchers, despite the obvious fallibility of their crystal balls, are once again confidently predicting that Bush will get as many as three Supreme Court picks. As Bush plots his next four years and his legacy, he seems exceptionally well poised to put his imprimatur on the Court and, through it, to influence the nation's direction for decades to come.
"He's got a terrific chance here to remold the judiciary, as [Richard] Nixon, [Ronald] Reagan, and [Franklin] Roosevelt did, if the numbers are in his favor and he's just a little bit careful, which I'm sure he will be," says University of Chicago law professor Cass Sunstein.
The numbers are, indeed, in Bush's favor: Every justice except Clarence Thomas is at least 65 years old; the oldest and least conservative (John Paul Stevens) is 84. Chief Justice William Rehnquist, who is gravely ill with thyroid cancer, is 80. And in the next Congress, the Senate's Republican majority will grow by four, to 55 members.
Much like Roosevelt and Reagan, President Bush sees a Supreme Court sympathetic to his views on presidential power and social issues as vital to the success of his agenda. At one Rose Garden event with the president last year, White House Counsel Alberto Gonzales ticked off topics on which this administration is looking to the Court for support: the war on terrorism, affirmative action, individual rights, campaign finance reform, and the Pledge of Allegiance.
Bush is apparently well aware that a president's Supreme Court selections help define his place in history. "He learned this lesson from his father," says a lawyer who once worked in the current administration. "Bush 41 [who tapped David Souter and Clarence Thomas] looks back on his two appointments as part of his legacy as president. And he has impressed upon his son the importance of picking wisely."
What the former official doesn't know is whether Bush's father thinks he chose wisely in making either or both of his very different Supreme Court nominations.
George W. Bush's success in reshaping the Court -- if he gets the chance -- will largely hinge on how much political capital he's willing to spend on trying to win confirmation of judicial nominees who share his ideology. "We saw that the Reagan administration was willing to push the envelope," says courts scholar Sheldon Goldman of the University of Massachusetts (Amherst). "George Bush is willing to push the envelope, and that's why we can expect contentiousness."
The Reagan Revolution
At the dawn of the Republic, a lifetime appointment to the Supreme Court was a tough sell. The nation's first chief justice, John Jay, called the Court an "inauspicious" body, according to historian Henry Abraham. During Jay's six years on the Court, he twice ran for governor of New York. He gladly departed after his second bid succeeded. His successor, Oliver Ellsworth, bailed out when he landed a diplomatic post in France. The Court finally found firm footing in the early 1800s under Chief Justice John Marshall. Throughout the 19th century, presidents often used Supreme Court appointments to reward the party faithful.
As the role of the Supreme Court in American life has evolved, so too have presidents' criteria and methods for nominating judges. Legal scholars say that until now, Reagan has had no equal in the care with which his administration researched nominees for ideological compatibility. "In many ways, President George W. Bush has borrowed from the playbook of Reagan," says David Yalof, author of "Pursuit of Justices", who studied Reagan's judicial selection memos. "The Reagan administration took it extremely seriously and invested tremendous resources, not just in terms of money, but manpower. By all accounts, the Bush administration is following that model."
Reagan was hardly the first president to try to mold the Court. The Supreme Court initially was a gigantic stumbling block for FDR, deeming 16 of his New Deal social programs unconstitutional in one 13-month span. Roosevelt derided the justices as the "those nine old men" and unsuccessfully tried to give himself six appointments by expanding the Court's membership. That "court-packing" legislation failed, but Roosevelt went on to appoint nine justices over a period of less than six years.
"Roosevelt had to be very careful, because his New Deal program was really just trashed by the Supreme Court," says Abraham, a University of Virginia emeritus professor and the author of "Justices, Presidents, and Senators". "He really didn't take any chances."
Roosevelt used three criteria, Abraham says: Allegiance to New Deal policies was paramount, but he also sought reliable liberals, and, later, men who supported his war powers. Roosevelt was not disappointed with the results. His justices, selected by his "Brain Trust," shifted the Court's balance on the New Deal, although on war powers some of his appointees sided against him.
With its 1954 Brown v. Board of Education school desegregation decision, the Supreme Court took a higher-profile role in shaping American society and began handing down a long string of decisions -- on topics ranging from civil rights to school prayer to defendants' rights -- that riled conservatives. As a presidential candidate in 1968, Richard Nixon campaigned against the Warren Court, named after Chief Justice Earl Warren, and vowed to appoint "law-and-order" conservatives.
"For Nixon, the only thing that was important was ideology," Abraham says. Yet Nixon's aggressive strategy, which sought ideological allies but didn't always include a careful check of nominees' personal and professional records, met with mixed results. He successfully tapped Warren Burger to follow Earl Warren as chief justice. The Democratic-controlled Senate shot down Nixon's next two nominees as unqualified, so he settled for 8th Circuit Court of Appeals Judge Harry Blackmun. At first, Blackmun was a reliable conservative, but he migrated leftward and is now best remembered as the author of the 1973 Roe v. Wade decision recognizing a constitutional right to abortion. Nixon also appointed Lewis Powell Jr., who became a swing vote on the Court; and Rehnquist, a reliable conservative whom Reagan elevated to chief justice in 1986.
Nixon failed to reverse the legacy of the Warren Court, but he did appoint four justices who consistently rendered tough-on-crime decisions -- even when that meant ordering Nixon to release tapes that implicated him in the Watergate scandal. (Three of those four justices also voted with the majority on Roe v. Wade, but abortion rights had not factored into Nixon's nomination calculus.)
President Ford's priority, post-Watergate, was a nominee who would not cause a stir. He won unanimous Senate approval of Stevens, who was a judge on the 7th Circuit Court of Appeals. Originally billed as an advocate of "judicial restraint," Stevens has gradually become the Court's least conservative member, largely because of the departure of the old-style liberals who long dominated the Court.
Reagan refocused judicial selection back on ideology. As governor of California, he had blamed what he saw as mismanagement of schools and prisons on irresponsible court rulings. He also believed he hadn't paid sufficient attention to his state Supreme Court nominees and wanted to make up for that mistake as president. Although his second-term nominations (Antonin Scalia; the elevation of Rehnquist; Robert Bork; Douglas Ginsburg; and Anthony Kennedy) were far more ideological than the first (O'Connor), Reagan institutionalized in-depth screening of all prospective judicial nominees.
"It was unprecedented at the time," says Yalof, a University of Connecticut political scientist. Reagan established the Office of Legal Policy within the Justice Department to handle judicial vetting. That task had previously been part of the deputy attorney general's portfolio.
Reagan also created a joint White House-Justice Department selection committee, chaired by the White House counsel. "He really thought the power of appointment was very important," says Reagan White House Counsel Fred Fielding. "That's part of the reason why he brought the selection process into the White House." In addition, Reagan requested a memo specifying how his nominees' views ought to stack up on key areas of law, including federalism, separation of powers, and "individual rights," which was code for abortion. These criteria applied to all judicial selections, says the University of Massachusetts's Goldman, as Reagan began to use lower-court appointments to better position his potential Supreme Court nominees.
By nominating O'Connor, Reagan fulfilled a campaign promise to put the first woman on the Supreme Court. O'Connor, a judge on the Arizona Court of Appeals and a former state senator with a reputation for pragmatism, had a key cheerleader: fellow Arizonan Rehnquist, who had attended Stanford Law School with her. Conservative activists have been unhappy with O'Connor, who often casts the decisive swing vote and has helped keep the Roe decision alive. Yet, Fielding says, "I think [Reagan] would make the same appointment again." Scholars say that Reagan, positioning himself to win re-election, intentionally picked a moderate.
In his second term, Reagan turned further right in selecting nominees. When Chief Justice Burger retired, Reagan chose Rehnquist to succeed him. To take Rehnquist's place as an associate justice, Reagan nominated Scalia, a judge on the D.C. Circuit Court of Appeals with a reputation as an outspoken conservative intellectual. The proposed promotion of Rehnquist, then the Court's most conservative member, drew far more fire from Democrats and civil-rights groups than Scalia did. Although Scalia was, if anything, more conservative than Rehnquist, his nomination flew through the Senate. Rehnquist was also confirmed, of course.
Scalia's confirmation didn't tip the Court's ideological balance. But after moderate Justice Powell retired in 1987, Democrats warned that confirmation of Reagan nominee Robert Bork, then a judge on the D.C. Circuit, would once again make America a land of back-alley abortions. Republicans no longer controlled the Senate, and Reagan was mired in the Iran-Contra scandal. On a 42-58 vote, Bork failed to win confirmation.
Fielding chalks up Bork's defeat to a strategic error by the Reagan team. "We decided to go with Scalia before Bork because we thought Scalia was more controversial," he says with a laugh. "You make calculations about what groups might attack. If you look at their writings, [Scalia] was a little more outspoken. We thought Bork would be the easier of the two. It's obviously not a science." Ultimately, after another nominee withdrew for having smoked marijuana, Reagan went with a more moderate pick -- 9th Circuit Judge Anthony Kennedy, who in 2003 authored the Lawrence v. Texas decision striking down sodomy laws and extending the right of privacy to same-sex couples.
President George H.W. Bush, who was less ideologically driven than Reagan, inherited eight years of intensive research. Both of his Supreme Court picks -- Souter and Thomas -- had appeared on Reagan's lists. Souter, a former judge on the New Hampshire Supreme Court, is often referred to as a "stealth nominee" because his views were so little known. But he had two well-placed advocates -- White House Chief of Staff John Sununu, a former governor of New Hampshire; and Sen. Warren Rudman, R-N.H. Souter also benefited from the Bork hangover, which favored candidates who would not cause a furor in the Senate.
In 1991, Bush nominated Thomas to try to shore up conservative support. The sexual-harassment charges that turned Thomas's confirmation hearings into a circus are well known. Thomas was the ideological opposite of the man he was nominated to succeed, Thurgood Marshall, but they were both black. Blocking Thomas might well have turned the Court back into an all-white institution. Instead, Thomas was eventually confirmed, by the closest margin of any successful Supreme Court nominee -- 52-48.
President Clinton's approach to judicial nominations mirrored his policies -- moderate. D.C. Circuit Judge Ruth Bader Ginsburg and 1st Circuit Judge Stephen Breyer fit the mold. Both had reputations as being thorough and fair. "President Clinton worked really hard to, on the whole, nominate centrist candidates who really were able to generate broad support in the Senate and in the country," says Clinton White House Counsel Jack Quinn. "He wanted consensus." Adds Clinton Chief of Staff Leon Panetta: "He basically was interested in people like himself."
The Element of Surprise
President Eisenhower, asked whether he had made any mistakes, quipped, "Yes, two. And they're on the Supreme Court." Justice Felix Frankfurter was asked whether a jurist changes when he puts on the robe. His reply: "If he's any good, he does."
Much is made of "surprise" justices who wander off in an unexpected direction after being appointed, but history shows that presidents who care deeply about the ideology of nominees usually get the sort of jurists they want. "It's a national myth -- and a very unfortunate one -- that Supreme Court appointments are highly unpredictable and presidents have little control," says legal scholar Sunstein.
Abraham estimates that 20 percent of Supreme Court justices turn out to be disappointments to the presidents who nominated them. Yet, there are few instances in which a justice's ideological turn was completely unforeseeable. One of the rare genuine surprises was Lincoln-appointee Salmon Chase, who after Abraham Lincoln's death struck down a currency law that he had help craft as Lincoln's Treasury secretary.
The more-recent examples often trotted out include Warren and Eisenhower's other "mistake," stalwart liberal William Brennan Jr.; Blackmun; Stevens; and Souter. Any conservatives who expected O'Connor and Kennedy to toe an ideological line have been disappointed, but those two Reagan appointees had never been billed as movement conservatives.
In fact, there's nothing very shocking about the Court records of any of the past half-century's "surprise" justices. Eisenhower chose Warren as payback for then-Gov. Warren's delivery of California's 52 delegates at the Republican National Convention. Plus, the Republican Party was pressuring Eisenhower to get the progressive Warren out of politics. Eisenhower picked Brennan in 1956 to appeal to swing voters in an election year. Brennan was a Roman Catholic from New Jersey, where he'd amassed a liberal record as a judge, and he had obvious leftward leanings.
Blackmun was hardly Nixon's first choice for the vacancy he eventually filled, but Nixon's first two choices had flopped so thoroughly that the president felt compelled to choose someone who could win confirmation easily. And although Blackmun moved left, he remained reliable on "law and order," Nixon's signature issue.
Ford knew little about Stevens beyond his reputation as a well-respected judge. He met Stevens just four days before he nominated him, and he never asked his staff to divine Stevens's party or religion. While the GOP has moved to the right since Ford's presidency, Stevens has charted a different course and, sometimes, so has Ford -- on gay rights, for example. There's nothing to indicate that Ford is unhappy with Stevens's record.
Souter is widely reviled as a turncoat by movement conservatives. But Souter's lifelong mentor was the moderate Sen. Rudman, whose support for abortion rights was no secret. Plus, President George H.W. Bush didn't want his first Court nomination to turn into another Bork-scale battle. "It's very easy to look back and say everyone was shocked, but there certainly was at least mixed evidence" of Souter's conservatism, Yalof says.
So, the lesson for the current President Bush is: Pay attention. In the quarter-century since Reagan first took office, Republicans have amassed an ample farm team with substantial track records in the lower courts. And they have the Federalist Society. Started in 1982, the organization attracts conservative legal minds, and anyone who would "surprise" a conservative president is unlikely to be a member.
"It's easier for Bush because he has a deeper bench to pick from," says John Yoo, a former top Justice Department official who was involved in the selection of judicial nominees.
The 'Borklets' Are Coming
Asked before this year's election whom he would nominate to the Supreme Court, Bush joked, "I'm not telling. I haven't picked anybody yet. Plus, I want them all to vote for me." He added, "I would pick somebody who would not allow their personal opinion to get in the way of the law."
Former Reagan aide Bruce Fein offers this translation: Bush wants to nominate "a Borklet."
Bush re-established Reagan's Office of Legal Policy. Bush's father had returned the job of judicial candidate vetting to the deputy attorney general's office and cut back on the resources devoted to the task, says the University of Massachusetts's Goldman, but the son bulked it back up.
In this administration, both the Justice Department and the White House keep lists of about 10 possible Supreme Court nominees handy, according to former aides who helped compile them. Even though Rehnquist has been absent from the bench since late October, there's no short list yet. And there have been no interviews with potential Supreme Court candidates or consultations with sitting judges, these ex-aides say.
A list of names for all levels of federal judgeships has been assembled and continually updated by the White House Counsel staff and the Office of Legal Policy. And the OLP staff researches each potential nominee exhaustively. Dossiers, running 50 to 100 pages apiece, are distilled down to 10-page memos that are sent to a close circle of aides, who use the information to pare down the list.
That circle is smaller for Supreme Court prospects and usually includes just White House Chief of Staff Andrew Card, the White House counsel, the attorney general, White House senior political adviser Karl Rove, and perhaps another political aide. These advisers prepare a summary for the president. The Supreme Court list is not updated regularly, say former members of Bush's legal team, although it's gotten more attention lately.
Bush has not yet gotten involved in the consideration of possible Supreme Court nominees, say two former Bush administration lawyers. "When I was there," one said, "from time to time, he expressed some interest that we were ready to go." Bush has not requested a memo detailing the standards a Supreme Court nominee should fit, but former aides say that's because his wishes are well understood.
"A lot of it is like preparing for a disaster," Yoo remarked. "You don't know when it's going to happen. And until it happens, a lot of those decisions don't get made."
But if Bush does get to select a Supreme Court justice, his comfort with what he perceives to be a prospective nominee's ideology is likely to play a paramount role in his decision. "I think ideology is 95 to 99 percent of [Bush's] concern," Fein says.
What Bush might see as a good ideological match for his administration, however, is a matter of debate, even though his lower-court nominees have tended to have a definite tilt to the right. "Everyone's focus [now] is on the hot-button issue, which is abortion," says a veteran of Bush's legal team. But "from the inside, the [vetting] process really looks and feels different. There is not a single-issue focus." A memo on a prospect would include the potential nominee's position on abortion if known, but, he insists, "no one really hopes or believes that they're appointing a justice that will be committed to overriding Roe v. Wade or taking a particular position on a particular case."
Yet academics say that Bush is apt to want Supreme Court appointees who share his views on social issues, including abortion and gay marriage, and the war on terrorism. Luckily for him, says Sunstein, "the correlation between those who think Roe v. Wade was wrong and think the president should have broad powers to combat terrorism is superb."
Fein says that a nominee's stands on social issues are especially important, because "those are the cases where you can't get a legislative fix." And while Bush's legal team is no doubt scouring potential nominees' decisions and speeches for hints on how they view the president's powers to fight terrorism, they can in most cases make only a rough guess based on traditional law-and-order stances.
Some potential nominees, however, do have a record on terrorism. Both J. Harvie Wilkinson and J. Michael Luttig serve on the 4th Circuit, which has heard a number of terrorism cases and has generally been sympathetic to the administration. Others with a record on terrorism include Gonzales, of course, as well as former Solicitor General Theodore Olson, who defended the administration's policies before the Supreme Court.
In making the final cut, timing is everything. O'Connor calls herself "a classic example of being the right person at the right spot at the right time." Second-term presidents typically feel freer to follow their own desire rather than yield to interest-group pressure. They also tend to be less swayed by public opinion.
A second-term president's clout is greatest in the first months after winning re-election. If a Supreme Court vacancy occurs soon, Bush's aides may advise a go-for-broke strategy of nominating someone certain to delight movement conservatives and outrage Senate Democrats. But such a strategy -- even if successful -- could burn up a lot of the Senate's time, and with it a lot of the president's political capital.
Most presidents have only about 18 months in which to try to accomplish their second-term goals. After that, Congress is consumed by midterm elections, and then the president himself begins to seem like a lame duck. If a good portion of Bush's critical 18 months is devoted to pushing through a controversial nominee, the administration could find the clock running out on its plans for Social Security.
The Iraq war and terrorism perpetually loom as factors that could bolster or obliterate Bush's standing with the public -- and, thus, his odds of winning confirmation of a very conservative nominee. What's more, scandals are often a second-term staple. And the GOP could always lose its hold on the Senate in 2006, so a choice that might be confirmable this year might not be later.
The complex calculation of whose name to send to the Senate depends in part on whose seat is to be filled. Getting a Rehnquist clone confirmed as Rehnquist's successor would be much, much easier than getting a Rehnquist clone confirmed to take Stevens's place.
If Rehnquist leaves, Bush will have to decide whether he wants to promote from within for the chief's slot or nominate an outside candidate. It worked to Reagan's advantage to pick two fights at once by elevating Rehnquist and thus creating an associate-justice opening to be filled.
Like Reagan, Bush is enamored with "firsts." He's made no secret of his wish to nominate the first Hispanic justice. Yet, although female and minority nominees put Democrats who support diversity in a tight spot, Democrats blocked Bush's D.C. Circuit nominee Miguel Estrada because of their fears that he is more conservative than he let on.
If Rehnquist's chair becomes open and Bush truly wants to be bold, says one former official of this administration, he'll propose elevating Thomas, who is in many ways the Court's most conservative and most controversial member, and then tap a conservative Hispanic to take Thomas's place as an associate justice. Incoming Senate Minority Leader Harry Reid of Nevada bluntly warned Bush on December 5 that Democrats are prepared to fight if Thomas is nominated for chief justice.
Yet, a switch of a justice or two is unlikely to radically alter the Supreme Court's direction. A switch of three or four -- or, as FDR proved, nine -- could be an entirely different story. Then, a Court generally loath to stray too far out of step with the American public -- whether on abortion, affirmative action, gay rights, or terrorism -- could decide that stability is highly overrated. And Bush could have a remarkable Supreme Court legacy.
"President Clinton's approach to judicial nominations mirrored his policies -- moderate. D.C. Circuit Judge Ruth Bader Ginsburg and 1st Circuit Judge Stephen Breyer fit the mold. Both had reputations as being thorough and fair..."
This sentence says all you need to know about where the author of this National Journal piece is coming from...
Bader a moderate - that's a veritable knee slapper!!
Bush may not get as many chances as one might think. Despite health problems, a justice like Ginsberg would probably struggle to stay on the court to deny Bush a chance to 'take away' a 'liberal seat' by appointing a conservative to her seat.
Justices have played games with their retirements for years. Often death is the only way they leave the court.
As long as any USSC nominee that Bush sends up can read, understand, and WILL abide by the Constitution, I would have no objection.
I'm getting the funny feeling that there is a distinct possibility that another 4 years will go by without a Supreme Court retirement. Every one of the justices that are old and expected to retire could, if they had the mind, easily last another 5 to 10 years before they were hauled out in a coffin. Strom Thurmond stayed in the Senate until he was a 100; the Pope and Castro are still going at it when they could have given up their posts for easier final years. Old people frequently die immediately after retiring as their last purpose in life is finished. Its more than just their jobs these justices are clinging to.
As long as there is a Republican in the White House, he leftists on the court will only leave feet first.
I'm afraid this is right.
Since these two were Orin Hatch's recommendations to Clinton. What does that tell you about the RINO's we have on Judiciary? Hmnnnn
Please FreepMail me if you want on or off my Pro-Life Ping List.
"W" has an opportunity to change the face of the USSC like no other president has to include RR. He needs to tell the ilk of Reid to pound sand and go forward with his nominees. Orin Hatch does NOT need to be one of them.
a couple of good nominees to start off with would be:
Miguel Estrada (if he'll take it, his wife recently died)
time to play the nuke card
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