I agree with Ms Cummings that Scalia is perfectly positioned for nomination.
Split Decision: Bush Faces Judicial Test
01/04/2005
JEANNE CUMMINGS
THE WALL STREET JOURNAL
WASHINGTON -- If Chief Justice William H. Rehnquist leaves the Supreme Court this year, President Bush will face a tough decision: to elevate a sitting justice or bring in an outsider as the chief.
Promoting an associate justice gives the president a chance to appoint an ideologically aligned chief justice in addition to bringing in an associate justice. But a chief-justice nomination requires a separate confirmation by the Senate, so going that route means the White House would face two confirmation battles just when Mr. Bush needs congressional help to overhaul Social Security and the tax code.
Alternatively, bringing in an outsider right away as chief justice might minimize partisan squabbling but is risky because it means putting someone untested into a powerful post.
"Every president is tempted and advised to take advantage of the two-appointment opportunity," says Douglas W. Kmiec, a professor of constitutional law at Pepperdine University in Malibu, Calif. Most resist, he says, to "avoid the political" battles that could ensue.
The chief justice has significant influence over which cases are heard and the reach of court rulings. For instance, it is the chief justice's job to cull through thousands of petitions and prepare a primary list of cases to be considered for acceptance by the full panel. If in the majority, the chief justice decides who writes the majority opinion -- a choice that can influence how narrowly or broadly a ruling is written. Historically, chief justices also have lobbied fellow members to deliver unanimous rulings in landmark decisions, such as the requirement that President Nixon release Watergate tapes and the order ending racial segregation in schools, Prof. Kmiec said.
Of the 16 men who have served as chief justice, only three were elevated from the court to the top spot. Two others were retired justices brought back to become chief justice. One, Justice John Rutledge, was a 1795 recess appointment by President Washington who failed to win Senate confirmation. The remaining 10 were plucked from outside the court. All Supreme Court justices have life tenure.
Chief Justice Rehnquist was among those elevated from within -- in 1986 by President Reagan -- after serving as an associate justice for more than a decade. Last year, the 80-year-old chief justice announced he was diagnosed with thyroid cancer. He subsequently started aggressive treatment and has continued to work from home. Still, many medical experts say the treatment regime suggests a serious condition, prompting speculation he will step down this year.
As a result, conservative and liberal advocates are setting up war rooms, researching potential candidates, and developing television-advertising budgets flexible enough to respond to either nomination scenario. Meanwhile, the White House has yet to tip the president's hand. "Justice Rehnquist is still serving, so there is no need to have those discussions," says White House spokesman Trent Duffy. Chief Justice Rehnquist is scheduled to swear in Mr. Bush at the president's inauguration this month.
A single nomination from outside the court would allow the White House to focus on defending its nominee in the event of a Democratic filibuster. It would make a tug of war between Mr. Bush and Senate Democrats more stark and more easily understood by the public. A single clash also could reduce the amount of bad blood generated and time consumed in the Senate, the chamber that is expected to take the lead on the president's Social Security proposal.
The downside to such an appointment, say legal advisers close to the White House, would be an expectation that Mr. Bush must nominate someone with considerable gravitas to be chief justice. "We think of the chief as being someone who is a seasoned, senior person, although there's no reason that has to be," says Roger Pilon, director of the Center for Constitutional Studies at the Cato Institute.
Mr. Bush has made it a priority to appoint young, conservative judges whose influence is likely to be felt for decades. To that end, President Reagan's 1986 Supreme Court nomination two-step provides a useful model for the White House.
Mr. Reagan's goal was to maximize the conservative imprint he would leave on the court. When Chief Justice Warren E. Burger left the court in 1986, the president promoted then-Justice Rehnquist to the top job and, thereby positioned a conservative atop the court for nearly two decades. Mr. Reagan then nominated conservative Antonin Scalia to fill the associate-justice chair vacated by Mr. Rehnquist's elevation.
The Rehnquist-Scalia appointments took place before the decorous judicial-nomination process in the Senate was blown apart in 1987 by Democrats' successful campaign to block the appointment of Judge Robert H. Bork to the high court.
In addition, the justices whom Mr. Bush has said he favors -- Mr. Scalia, 68, and Clarence Thomas, 56 -- are certain to draw political fire as their opposition to abortion rights could make even moderate Republicans uncomfortable.
Despite the political firestorm that a court promotion might spark, the upside in doing so remains considerable because it widens the field to include younger candidates whom Mr. Bush can consider for the associate-justice position.
The White House developed a list of potential Supreme Court nominees in 2001, and some legal experts close to the administration say several now are considered too old for nomination. For instance, J. Harvie Wilkinson III of the Richmond appeals court is seen as a likely candidate for the chief's post. But the 58-year-old Mr. Wilkinson could be passed over for an associate-justice position to make way for his 49-year-old colleague on the Richmond bench, Judge J. Michael Luttig.
The political landscape after the 2004 election may have reduced some risks for Mr. Bush in making a dual nomination.
Senate Minority Leader Tom Daschle of South Dakota lost re-election in a race that highlighted his role in blocking Mr. Bush's appellate-court nominees. Newly installed Minority Leader Harry Reid, in his first national-television appearance after the election, shocked liberals by saying Mr. Scalia was smart enough for the chief-justice job. White House officials viewed the comments as a promising sign that, under Mr. Reid's leadership, Democrats would take a softer stance. A spokesman for Mr. Reid said little should be read into the remarks and the Democrats will chart their course depending on the nominee or nominees.
"I don't think the American people will tolerate the smearing of two nominees at the same time," says Mark R. Levin, president of the conservative Landmark Legal Foundation.
Write to Jeanne Cummings at
[email protected]
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