Replicating Rehnquist

With Chief Justice William Rehnquist's resignation seemingly imminent, George W. Bush's first chance to reshape the Supreme Court looks to be at hand. Bush's record of nominations to federal appeals courts is clear; if at all possible, he will seek to appoint an uncompromising conservative to the Supreme Court. This shouldn't be all that surprising, given that, as a presidential candidate, Bush held out Justices Antonin Scalia and Clarence Thomas as his judicial models.

Although Rehnquist is a reliable conservative vote, his replacement will be of some significance. “This court has had more 5-4 decisions on key issues than any in recent memory,” says Richard Lazarus, a Georgetown University law professor. “One change in the Court's makeup … is likely to tip the balance.” But, as Susan Jacoby recently wrote in the Prospect, Rehnquist's conservatism is of a different cloth than some potential replacements -- he is “a legal conservative, not a religious fundamentalist.” Rehnquist shares President Bush's interest in interpreting the Constitution to change the underlying structure and power of the federal government, but he has not beared down on hot-button social issues as many potential nominees might.

So whom is Bush likely to appoint?

Two names heard frequently are those of 60-year-old J. Harvie Wilkinson III and his slightly more doctrinaire (and 10 years younger) colleague J. Michael Luttig. They have played an important role in making the Fourth Circuit the most socially conservative appeals court in the land and are often depicted as subtle competitors for a potential nomination. Between the two, Luttig generally is viewed as more outspoken on ideological issues, while Wilkinson is seen as more restrained. The general opinion is that Wilkinson, a former chief of the Fourth Circuit, would be more likely to be appointed first, particularly if the appointment is directly to the chief's slot. But if Bush feels that the Republicans' 55-member Senate majority is enough, or if Majority Leader Bill Frist greenlights the so-called “nuclear option” to eliminate the minority filibuster, Luttig's relative youth -- not to mention his experience helping to shepherd the nominations of Clarence Thomas and David Souter during the first Bush administration -- might earn him the call.

Although Alberto Gonzales once seemed to be the optimal first candidate, he is obviously out of the running for the moment. But if Bush is looking to be the president who appointed the first Latino justice, he has a more conservative choice to achieve that goal: 57-year-old Fifth Circuit Judge Emilio Garza. Garza, a gregarious former Marine captain, was a finalist for the seat that went to Clarence Thomas. Like many prospective nominees, Garza has a long paper trail -- including a number of judicial opinions that Democrats could cite as evidence that he would overturn Roe v. Wade; he might create a tough confirmation fight.

Another leading ultra-conservative candidate is Judge Samuel Alito of the Third Circuit, known by some as “Scalito” for his similarity to Scalia in temperament and ideology. A former federal prosecutor and U.S. attorney, Alito, 54, has strong ties to the administration, including to a number of former clerks who have worked for Bush.

A newer addition to the Republican short list is John Roberts, 50, recently confirmed as a judge on the D.C. Circuit, a frequent stepping stone to the Supreme Court. Not only was Roberts confirmed two years ago by a Senate with more Democrats than this one, but also he has close ties to the Bush administration. Although it is still early to make any judgment on his rulings, some critics have highlighted several dissenting opinions they say suggest that he is too conservative to sit on the High Court. Many think Roberts will be kept in the bullpen to gain some seasoning but could be a potential nominee in the second or third year of a second Bush term.

Few observers identify many women on Bush's short list. One name often heard but just as quickly discounted is Judge Edith Jones -- an outspoken right-winger from the Fifth Circuit with strong Republican Party ties; she lost out to Souter in 1990. Jones, 56, is seen by many as old news and would probably pose a serious confirmation battle. In contrast, some think Janice Rogers Brown is a possibility, despite the filibuster that has kept her off the D.C. Circuit. Born the daughter of a sharecropper, she became the first African American woman on the California Supreme Court. Though as conservative and outspoken as Jones, she has the advantage of having “a great personal story, that has already encountered the Democratic response,” says Thomas Goldstein, an attorney who argues before the Court and keeps a regular tab of cases on its docket.

A number of other well-known and bright conservative judges, including Frank Easterbrook and Richard Posner of the Seventh Circuit and Alex Kozinski of the Ninth Circuit, are unlikely appointees in light of their libertarian bent and occasional departures from social conservative doctrine. Indeed, it seems likely -- given the sharp and close divide in today's political world, in which one or two votes on the Court could made a significant difference in constitutional interpretation for years to come -- that the heavily ideological Bush administration will do everything it can to ensure that its nominees are clearly and consistently conservative. At the very least, it will seek to avoid a repeat of what it views as the catastrophic Republican appointment of Souter, who lacked a conservative “paper trail” and, subsequently, addressed cases with an open mind once he got the Court.

One way to ensure conservative fealty is to appoint a politician with a proven voting record on issues of importance to the White House. However, the Senate, which in the past has been a source of Supreme Court justices, currently lacks a Republican of that stature and background. Orrin Hatch, who for years has been talked about as a Republican nominee, is now, at nearly 71 years of age, too old. Several other conservative firebrand senators who also sit on the Judiciary Committee, including Jon Kyl from Arizona and Jeff Sessions from Alabama, would appear to lack the intellectual gravitas (or at least one would hope the standards are high enough to make it so). And while many members of the right wing would love to see former senator and Attorney General John Ashcroft nominated, even this confrontational administration realizes the liability of such an action.

At the heart of the administration's decision will be the kind of political battle it wants to wage. With the president's party now in control of 55 Senate seats, Democratic opposition is more of a threat to the public relations side of any confirmation battle than to the nomination itself -- especially for a replacement of a conservative, like Rehnquist. It's unclear “whether the Democrats will be willing to try and block Supreme Court nominees,” says Duke law professor Erwin Chemerinsky. “They wouldn't do it for Clarence Thomas, even though they had the votes. These kinds of fights cost a lot of political capital, without being worth much in terms of political benefits.”

In contrast, the Bush administration has shown enormous willingness to fight for a candidate without concession. In introducing his first judicial nominees, Bush claimed to want a “return of civility and dignity to the confirmation process.” But he has done precisely the opposite.

As Lazarus notes, “This group in the Bush White House doesn't compromise. They just go for it.”

Correction: This article originally stated that Janice Rogers Brown had been nominated to the Ninth Circuit; she was in fact nominated to the D.C. Circuit.

Alexander Wohl, a former U.S. Supreme Court Judicial Fellow and Supreme Court correspondent for the San Francisco Chronicle, is an Adjunct Professor at American University, in the Department of Justice, Law and Society.

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