Four of the nine justices currently on the Supreme Court are at least 65 years old. Chief Justice William Rehnquist, the last of the Nixon appointees, is 75. Justice John Paul Stevens, a Ford appointee, is 79. Justice Sandra Day O'Connor, a Reagan appointee, is 69. Justice Ruth Bader Ginsburg, a Clinton appointee, is 66 and recently underwent surgery for colon cancer.
One cannot, of course, be definite here. Thurgood Marshall served for a decade after many observers thought that poor health would force him to resign. And one does not wish to be funereal. Still, the next president will almost certainly appoint three, maybe even four, justices to what is now a closely divided Supreme Court. He or she will thus significantly shape the course of federal constitutional law for the first several decades of the new century.
A turnover of only one or two seats could have major repercussions across a wide range of areas including abortion rights, affirmative action, and the place of religion in public life. While Congress and the executive branch have fought one another to a standstill, the Court has been encroaching upon both in a quiet show of self-confidence. As Linda Greenhouse, The New York Times' Supreme Court correspondent, observed at the end of the Court's last term, "One could almost feel governmental power in Washington flowing in the Court's direction."
Perhaps the most striking aspect of the Rehnquist Court's conservative activism over the past four years is its demonstrated willingness to shrink the power of the federal executive and legislative branches in relation to state governments. At stake, among other things, is the capacity of the federal government to protect the citizenry against private and state misconduct through civil-rights legislation. Thus far the Court has acted with subdued directness in implementing the vision of its chief justice- an unreconstructed supporter of the 1964 Barry Goldwater, a reactionary jurist who, in his heart of hearts, is still attached to the social order that preceded the New Deal, the Civil Rights Movement, and Women's Lib, not to mention the Lesbian-Gay insurgency. Chief Justice Rehnquist has prevailed in recent fights over federalism but only by a hair-thin five-to-four majority. It is unclear, for example, whether this year the Court's conservative majority will cohere sufficiently to conclude (as did a lower court of appeals) that Congress acted outside its authority in enacting the Violence Against Women Act. In the future, though, the addition of a couple of justices who are as committed to conservative dogma as Antonin Scalia or Clarence Thomas would remove this ambiguity and make clear a new dispensation that would be openly hostile to liberal aspirations at a number of key junctures.
What will likely happen if George W. Bush is the president who appoints the new justices? As the governor of Texas, Bush has appointed few judges- because judges there are elected. He has, however, made interim appointments that even liberal observers have applauded. He has elevated to the bench highly competent, middle-of-the-road attorneys who are well respected by the state bar. In general, moreover, Bush as governor has distanced himself from the right wing of the state Republican Party in the process of forging the moderate-conservative image whose attractiveness is clearly making him a formidable candidate for the presidency. To win and keep the White House, however, Bush will be forced to make significant concessions to the powerful right wing of the national Republican Party. One of those concessions will likely be major influence in the selection of judges, especially the justices of the Supreme Court.
The right wing of the Republican Party is generally in favor of curtailing the federal government's authority, inhibiting governmental intrusions upon business enterprise, scrapping public "diversity" or "affirmative action" programs, and allowing only narrow interpretations of antidiscrimination laws. At the same time, the right would more strictly regulate sex and family life. By now well schooled in anti-abortion politics, the Republican right is highly organized, understands the long-term importance of the judiciary, and, more than any other sector of the Republican Party constituency, intensely craves the power to influence the Supreme Court's future trajectory. After all, two or three appointments of the "right" kind will doom the right's most hated Supreme Court precedent Roe v. Wade.
Even if Bush manages to win the presidency without mortgaging his future Supreme Court appointments to the right, there is another reason the nominees of any Republican president are likely to be very conservative. The cadre of elite Republican lawyers drawn to policy making has moved increasingly rightward over the past 20 years. William Rehnquist, for example, used to sit at the right edge of this community; that is no longer true. An appreciable number of jurists who will likely be on short lists for a Republican president are as far to the right as the chief justice- if not farther.
A variety of developments account for the dominance of ultraconservatives among the higher circles of Republican jurists. One is the influence of Antonin Scalia and, to a lesser extent, Clarence Thomas. Scalia is an inspirational role model to young Republican attorneys. He has added a dash of intellectual panache, indeed glamour, to right-wing juridical thinking. He has shown that one can scale heights of judicial power without trimming one's articulation of conservative principles. And he has helped to advance the careers of up-and-coming conservative jurists. William Brennan and Thurgood Marshall did not self-consciously nurture a group of ideological apostles who would carry on the fight for liberalism within the government. Justices Scalia and Clarence Thomas are different. They are ideological warriors in every phase of their professional lives. They and like-minded jurists have made it clear to ambitious young lawyers that there is something to be gained personally and professionally by voicing and acting upon conservative principles. As mentors, Scalia and Thomas have thus helped to create a community bound by ties not just of ideological commonality but of personal loyalty.
Another important force is the Federalist Society, an organization of jurists that has done an excellent job of attracting conservative law students, sharpening their thinking through debates and other organized intellectual activity, and advancing their careers by plugging them into networks of law professors and judges. It helps lawyers who are intuitively conservative in sentiment to become self-consciously conservative in thought. Once they attain this self-consciousness, they tend to become far more thoroughgoing in their conservatism.
A third reason for the rightward shift in elite Republican legal circles is the lingering resentment generated by the fight over President Ronald Reagan's nomination of Robert Bork to the Supreme Court. Many highly placed Republican lawyers are still angry about Bork's defeat. They view it as a naked example of the ideological ruthlessness of the left, a ruthlessness that, in their view, can only be adequately countered by an aggressive countermobilization.
A substantial number of Republican jurists, moreover, are disappointed by what they see as the excessive caution of justices Sandra Day O'Connor and Anthony Kennedy, Reagan appointees who, though conservative, are unwilling to join fully in the reactionary rollback of established (liberal) precedents that justices Scalia, Thomas, and Rehnquist are clearly willing to challenge. They feel even more betrayed by Justice David Souter, a Bush appointee whose voting record on key social issues is essentially the same as that of justices Ginsburg and Stephen Breyer, Clinton's moderately liberal appointees. Among conservative Republican court watchers, "No more Souters!" has already become a mantra that will reinforce the ideological policing of judicial candidates in a Bush administration.
Because of these and other developments, many, indeed most, of the likely Republican nominees for the Supreme Court will embrace beliefs that the Republican right will view with comfort. Bush has declared that he would impose no "litmus tests" on candidates for the Court. Such statements mean little. One does not have to impose such a test or obtain a precommitment in order to know where a jurist stands and how he or she is likely to vote as a justice.
Who are likely candidates for the Court in the event of a Bush victory? When I recently put this question to prominent Republican lawyers, academics, and lobbyists, the name that surfaced most often and enthusiastically was J. Michael Luttig. Luttig served as a law clerk to Antonin Scalia and Warren Burger, headed the Justice Department's Office of Legal Counsel (a post previously occupied by Rehnquist and Scalia), and since 1991 has sat on the United States Court of Appeals for the Fourth Circuit (which embraces Maryland, Virginia, West Virginia, and the Carolinas).
The Fourth Circuit, narrowly dominated by Reagan-Bush appointees, is the nation's most aggressively conservative federal court of appeals, and Luttig is its most aggressively conservative member. Asserting that Congress overreached its constitutional power, Luttig wrote the recent opinion strik ing down the federal Violence Against Women Act. In 1997 when a federal district judge temporarily impeded enforcement of Virginia's Parental Notification Act, state authorities successfully appealed for help to Judge Luttig who promptly reversed his subordinate colleague. A year later, a similar scenario reappeared, this time involving Virginia's Partial Birth Abortion Ban.
Luttig is intellectually sophisticated but without the vanity and extravagance that helped to undo Robert Bork. He is ideologically self-conscious but not an egghead. This is an important consideration: George W. Bush reputedly disdains bookish intellectuals. Luttig is sufficiently smart to be a justice but sufficiently regular to be a good ol' boy. One can easily imagine the genial, politically well-connected Luttig getting along just great in an hour-long interview with President W.
Though he is a right-wing ideologue, Luttig's record is probably free of any flagrantly outlandish statement or act that could serve as a dramatic rallying point for opposition. He did raise eyebrows when, after having been named to a judgeship and confirmed by the Senate, he continued to work as a Justice Department employee on behalf of Justice Thomas's controversial nomination. According to some accounts, Luttig served essentially as Thomas's legal instructor. Some senators might use this arguable ethical lapse as a basis for opposing Luttig. But doing so would be merely pretextual. To honestly oppose Luttig as a nominee would require senators to acknowledge that he is a decent man who is fully competent to be a justice except for ideas that are simply too conservative. Some Democrats, mistakenly believing in a sharp distinction between "law" on the one hand and "politics" on the other, will likely shy away from an openly ideological fight over a nominee. But there is nothing wrong with such a fight. Democrats should wage it if confronted with Luttig or anyone with similar politics.
It is unclear, though, whether a sufficient number of senators will take this position to block confirmations- even if the Democrats were somehow able to regain a majority in the Senate. Senates with Democratic majorities, after all, confirmed Scalia, Thomas, and Rehnquist for chief justice. We can hope that wavering Senate Democrats have learned from the hardball tactics that Senate Republicans have adopted to slow or halt the confirmation of judges selected by President Clinton. The reason given by some Republicans for recently blocking the confirmation of Ronnie White for a federal judgeship in Missouri was that he was insufficiently supportive of the death penalty. Though they were wrong on the substance of the matter, the Republican senators were right to conclude that judicial ideology in and of itself is a sufficient basis for opposing a nominee. By the same token, Democratic senators should be willing to oppose Republican nominees who are insufficiently supportive of the rights of organized labor, the rights of women, the rights of racial minorities, and the rights of persons wrongfully discriminated against on the basis of their sexual orientation. One would hope that Democratic senators would unapologetically inform a republican president that they will block nominees who are too conservative and thus force the Republicans to turn to more moderate jurists. One would hope, too, that this will be done not only at the level of the Supreme Court but at the lower levels of the federal judiciary as well. Clinton has somewhat closed the gap between Republicans and Democrats on federal trial courts and courts of appeals. The election of a Republican president in November 2000, however, would open the way for an extraordinary consolidation of power not only at the Supreme Court but throughout the federal judiciary.
There is one consideration that might derail a Luttig candidacy for the Court, at least for the first vacancy. That consideration, ironically, is "diversity." Many Republicans will urge Bush to appoint to the Court a "right-thinking" Latino. The motivations for such an appeal are several. One is a praiseworthy sense that all influential centers of power in America should show that they value and are open to all sectors of the population. Since Latinos are a large and growing portion of the population, and since there has never been a Latino justice, it is time, so the argument runs, for a Latino to be elevated to the Court. This thinking runs afoul of the Republicans' stated opposition to race-specific and gender-specific affirmative action. On this score, though, Republicans have long been inconsistent. It was Ronald Reagan, not Bill Clinton, who asserted that he would definitely appoint a woman to the Supreme Court- and did so. It was George Bush who vetoed the Civil Rights Act of 1991 on the grounds that it constituted "a quota bill" and then turned around and nominated Clarence Thomas for the Court, all the while asserting (falsely) that race had nothing to do with his choice.
Along with wanting American political institutions to be and look inclusive and democratically legitimate is a more parochial motivation: Bush will want to make inroads upon the Latino vote for himself and his party [see "El Gobernador," page 40]. A way to accomplish this aim is to elevate Latinos to prominent positions of authority. Lyndon Johnson was proud of having been the president to name the first black justice. Reagan was proud of having been the president to name the first woman justice. W would be proud to be the president to name the first Latino justice.
Who might that person be? Because of discrimination against Latinos, the burden of economic and social disadvantages, and the relative newcomer status of many Latinos, there are very few who are sufficiently credentialed to stand as plausible candidates for the Supreme Court. When one includes the Republicans' ideological requirements, an already small number becomes tiny indeed. In this small pool, perhaps the most attractive possi bility, from the right's perspective, is Emilio M. Garza.
A former Marine captain who graduated from Notre Dame and the University of Texas School of Law, Garza was appointed to the U.S. District Court in Texas by Ronald Reagan and to the U.S. Court of Appeals by the elder George Bush. Garza's opinions are typically low-key applications of conservative principles and instincts. There is one subject, though, on which Garza is passionate and voluble. He believes that the Supreme Court erred mightily when it ruled in Roe v. Wade that under the federal constitution a woman has a substantive right to obtain an abortion, which trumps the authority of state legislatures to regulate the procedure. In 1997, for example, Garza concurred in a judgment that invalidated certain sectors of a Louisiana law dealing with parental notification of minors seeking abortions. Garza proceeded to say, however, that he was being forced regretfully to follow a Supreme Court precedent that he believes to be "inimical to the Constitution." Roe and its progeny, he writes, "have always stood on precarious consti tutional footing." Indeed, in his view, recent Supreme Court decisions suggest that Roe "may not even be constitutional law" anymore. Given his perspective, one wonders why Garza failed to follow the logic of his argument and dissent from his court's invalidation of the Louisiana statute in question. One possible reason is personal ambition. Had he dissented on the grounds that, in his view, Roe v. Wade is no longer binding (if it ever was), Garza would have made himself a judicial maverick- a hero to the right but a person too threateningly headstrong to win Senate confirmation. By doing what he did, Garza exhibited a humble deference to his judicial superiors, all the while denouncing so-called judicial imperialism.
There are a number of other conservative jurists spoken of highly in Republican circles. But several of them- Judge Frank Easterbrook in Chicago, Illinois, and Judge Alex Kozinski in Pasadena, California- are prolific, highly opinionated indi viduals who are genuinely interested in the life of the mind and thus vulnerable to the anti-intellectualism that Bush exudes. By far the most learned and capable conservative jurist is Judge Richard Posner. In addition to his court opinions, however, Posner has written volumes of brilliant, quirky, wide-ranging commentary that succeeds at some point in upsetting just about everyone. It would be fascinating to see a confirmation hearing for Posner. He has, after all, taken positions that many observers would view as not only wrong but genuinely depraved, such as defending the buying and selling of parental rights over babies on the free market. Furthermore, I doubt that Posner would engage in the sickening obsequiousness that is expected behavior for nominees seeking the Senate's approval. For these very reasons, however, Posner will never be nominated. He is simply too intellectually threatening to receive the political backing needed to obtain a seat on the Court.
Any predictions involving Supreme Court nominations are necessarily risky. Party politics, personal politics, ethnic-racial-gender politics, age, the vagaries of sickness and health, skeletons in closets, and yet more variables play a role in the selection process. Still, recognizing the speculative nature of the claim, I would nonetheless be willing to bet money that if George W. Bush becomes president of the United States, judges Michael Luttig and Emilio Garza will be elevated to the center of American politics as nominees to the Supreme Court. Perhaps that sobering prospect will be averted at the ballot box.
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