Bush and the Supreme Court: Place Your Bets

National Journal

Amid all the liberal scare talk about how letting President Bush pack the courts with right-wing Neanderthals would end civilization as we know it, it’s worth noting that the first new Bush justice, if there are any, probably won’t make the Supreme Court more conservative, and may well make it more liberal.

The first Bush justice will also probably be the first Hispanic justice (unofficial likelihood: 80 percent). A less likely but very real possibility is that Bush might also name the first female chief justice: centrist Sandra Day O’Connor (likelihood, assuming a vacancy: 40 percent). A first-Hispanic, first-female exacta would disarm the liberal groups that have been spoiling for the mother of all confirmation battles.

Here are the leading retirement and nomination scenarios, in rough order of prominence, that are buzzing around a Court-watchers’ grapevine newly energized by the election returns:

• Conservative Chief Justice William H. Rehnquist retires next summer, a few months before his 79th birthday (likelihood: 60 percent). Bush replaces him with Antonin Scalia, now 66, the intellectually potent conservative firebrand whom Bush singled out for praise during the 2000 campaign (likelihood: 50 percent). Bush also names the first Hispanic justice to fill Scalia’s seat. The leading contender is 47-year-old White House Counsel Alberto R. Gonzales, a Bush favorite whose record makes conservatives nervous. Also in the running is 55-year-old federal appellate Judge Emilio M. Garza of Texas, a conservative favorite said to inspire much less enthusiasm in the White House. Despite frenzied liberal opposition, Scalia would easily outwit any senators foolish enough to challenge him mano-a-mano, would charm television viewers, and would weather any Democratic filibuster. The Senate, which voted 98-0 for Scalia in 1986, would confirm both nominees-and if Gonzales or Garza proved less conservative than Rehnquist, the Court would tip to the left.

• Rehnquist retires. Bush names O’Connor, who turns 73 in March, to become chief justice and fills her seat with Gonzales or Garza.

• Rehnquist and O’Connor both retire (likelihood of O’Connor’s retiring: 30 percent). Bush makes Scalia chief justice, fills his seat with Gonzales or Garza, and replaces O’Connor with a conservative such as Chief Judge J. Harvie Wilkinson III, of the U.S. Court of Appeals for the 4th Circuit, in Richmond; Judge J. Michael Luttig of Alexandria, Va., Wilkinson’s more fervently conservative 4th Circuit colleague; or federal appellate judge, and former Scalia law clerk, Samuel A. Alito Jr. of Philadelphia.

• Same, but Bush replaces O’Connor with a brainy, conservative woman-perhaps federal appellate Judge Edith H. Jones, an arch-conservative Texan who came close to a Supreme Court nomination in 1990. Longer shots include Texas Supreme Court Justice Priscilla Owen, whose nomination to a federal appellate court has been stalled by Democrats, and California Supreme Court Justice Janice Rogers Brown, who happens to be black.

• Justice John Paul Stevens, a liberal who turns 83 in April, retires. Bush picks a conservative to succeed him (likelihood: 10 percent).

• Nobody retires (likelihood: 30 percent).

Any successful nomination of a strong conservative to succeed O’Connor-or, especially, Stevens-would swing the closely divided Court decisively to the right. That would endanger racial and gender preferences, lower barriers between church and state, and perhaps leave Roe v. Wade hanging by a 5-4 thread, among other things. Those prospects would bring a titanic confirmation battle-and possibly a stinging defeat, unless the nominee were Hispanic-by infuriating liberals and the media and by scaring moderate and independent voters.

The possibility of a swing to the left in the wake of a Rehnquist retirement hinges on the hypothetical choice between Gonzales and Garza, which could prove far more momentous than the choice of a new chief justice. It also hinges on fears among some conservatives that Gonzales might tip the Court toward perpetuating racial preferences-on which the justices are now evenly divided, with O’Connor straddling the center-and might join the six current justices who support abortion rights.

Gonzales has staffed his office with conservative lawyers and has helped choose conservative nominees for lower courts. But some conservatives are deeply concerned by his cautious centrism during two years on the Texas Supreme Court, by his statements praising Bush’s pursuit of racial "diversity" in appointments-including his own-and by his concurrence favoring minors’ abortion rights in a 6-3 decision that put him on the liberal side of an angrily divided Texas Supreme Court in 2000. Garza, on the other hand, sharply criticized Roe in a 1992 opinion, arguing that "the decision to permit or proscribe abortion is a political choice" that the Supreme Court should leave to the states.

Full disclosure: These speculations are based on grapevine gossip, not inside information. And when it comes to Supreme Court retirements and short lists, those who know don’t talk, and those who talk don’t know. That said, here’s the logic behind the guesswork:

The perennial buzz about a possible Rehnquist retirement is stronger than ever because the conditions are riper than ever. Rehnquist told television host Charlie Rose in 2001 that "traditionally, Republican appointees have tended to retire during Republican administrations," and Democrats during Democratic administrations. He has already had an unusually long tenure: 31 years, 16 of them as chief justice. If Rehnquist or any justice is inclined to retire during Bush’s first (and possibly only) term, the logical time would be in late June of next year-when there would be no elections to complicate the replacement process and the Court would be headed for its summer recess.

The rumors about O’Connor’s plans are in hopeless conflict. But O’Connor is five years younger than her Stanford Law School classmate Rehnquist. And the prospect of setting another first-woman precedent might be tempting, especially if the president were to signal a desire to make her chief justice.

Why might Bush want to do that? Politics. If courting women and moderate voters seemed more important to Bush than pleasing his conservative base, O’Connor would be the logical choice. While she would be the oldest person ever appointed chief justice, that might not discourage a president who hopes to serve until 2009.

Bush seems unlikely to promote any of the other Republican-appointed justices. Stevens is too old, and both he and David Souter are far too liberal. Anthony M. Kennedy, a centrist marginally more conservative than O’Connor, nonetheless has more detractors among conservatives; some see him as having played to liberal elite opinion in media interviews as well as in his votes on abortion, gay rights, and school prayer. And the grapevine has not spotted anyone outside the Court as a plausible candidate for Bush to promote over Scalia or O’Connor-although that might not stop Bush from doing it.

It is widely expected that politics, especially the politics of race, would be more important than intellectual distinction or ideology in influencing Bush’s choice of nominees. That’s the implicit assumption underlying the widespread view that Mexican-Americans Gonzales and Garza are the leading candidates. While both are capable, neither is regarded as an intellectual heavyweight in a class with Harvie Wilkinson, Michael Luttig, Samuel Alito, Edith Jones, Priscilla Owen, or Janice Rogers Brown. Another Hispanic-American, Washington lawyer Miguel Estrada, whom Bush has already named to sit on a federal appeals court, clearly is an intellectual heavyweight. He is also seen as a quite conservative, which is why Senate Democrats have stalled his nomination. But Estrada seems a long shot for next year because of his age (41), and lack of judicial experience.

In any event, even a succession of appointments making the Supreme Court much more conservative would change American life and law far less profoundly than the media hype would suggest. Abortion, for example, will remain legal in all or almost all states even in the unlikely event of a decision overruling Roe v. Wade (likelihood on that: 10 percent). The result would be for the Court to leave abortion policy to legislators and voters, most of whom favor fairly broad abortion rights.

Indeed, if ever a Bush Court overruled Roe, it would be a political disaster for Bush and other Republicans. They would then have to choose between alienating most voters by mounting a futile push to outlaw abortion and alienating their most loyal voting bloc by not doing so. If you were Bush political guru Karl Rove, would that be your goal?