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Supreme battle likely over justices
By Jan Crawford Greenburg Washington Bureau With an ailing Chief Justice William Rehnquist (news - web sites) administering the oath of office, Thursday's inauguration will provide a stark reminder that President Bush (news - web sites) soon could be embroiled in what promises to be one of the biggest fights of his presidency.
Seriously ill with thyroid cancer, the 80-year-old Rehnquist is widely expected to retire this year, giving Bush his first chance to shape the direction of a closely divided Supreme Court and leave a lasting imprint on a host of contentious social issues.
No justice has retired from the court in more than a decade, making it the longest-serving nine-justice court in the nation's history. With the current justices so closely divided on key issues of race, religion, abortion, gay rights, the war on terrorism and criminal justice, one or two new members could make a dramatic difference in Americans' everyday lives.
"Rehnquist will be the first of at least three retirements that will occur over the next few years," said John Yoo, a law professor at the University of California, Berkeley, who worked in the Bush administration. "Just as President Bush is proposing revolutionary changes in Social Security (news - web sites) and mainstays of the entitlement state, this will be his opportunity to begin a fundamental change in the role of the courts."
Those on both sides of the political divide have been sharpening their swords during recent fights over Bush's lower-court nominees. Although Republicans control the Senate, Democrats have blocked 10 of Bush's nominees by filibustering--a parliamentary tactic for stalling a vote that requires 60 of the 100 senators to overcome.
In the last Senate, Republicans held a slim 51-49 majority, but with November's election, they expanded that to 55-45. (That includes an independent who generally votes with the Democrats.)
Republicans now are weighing whether to change Senate rules to block Democrats from filibustering judicial candidates. Sen. John Cornyn (news, bio, voting record) (R-Texas), a member of the Judiciary Committee (news - web sites), has called the confirmation process "broken" and urged Senate leaders to end the use of the filibuster for judicial nominations.
But Democrats note that the Senate has confirmed more than 200 of Bush's federal court nominees and that they have filibustered only those 10 they believe hold views outside the mainstream.
The issue could arise well before a Supreme Court confirmation hearing, since Bush has renominated seven of the judicial nominees who were stymied by a filibuster in the last Congress.
All the previous fights over Bush's judges, however, will likely pale in comparison with the battles over Supreme Court nominees.
White House list ready
The White House is ready with a list of possible replacements that it has refined over the past four years as it waited in vain for Rehnquist or another justice to retire. But the list is very much of the moment, because political calculations can change from day to day, said one person familiar with the White House's thinking on the issue.
The list was put together by lawyers in the office of White House Counsel Alberto Gonzales, with input from Justice Department (news - web sites) attorneys. It does not yet reflect the input of Vice President Dick Cheney (news - web sites), political adviser Karl Rove or Chief of Staff Andrew Card.
Unlike the lawyers, Cheney, Rove and Card are likely to look at the broader political scene. "You have to decide how much fight you want and what else is going on," said another person who knows the White House's views. "Are you in the middle of the fight over Social Security?"
Three Washington, D.C.-area appeals court judges are at the top of the list to replace the chief justice, according to people with knowledge of the White House's thinking.
Two of the judges, J. Harvie Wilkinson, 60, and J. Michael Luttig, 50, are on the Richmond-based U.S. Court of Appeals for the 4th Circuit, considered the most conservative appeals court in the country. Both have long been considered contenders for the Supreme Court.
Wilkinson is a courtly Virginian whose mentor was the late Justice Lewis Powell, a moderate conservative.
Luttig is a Texas native who worked for Chief Justice Warren Burger. While he would be a favorite of Bush's conservative base, his nomination could trigger a filibuster by Democrats. The third, Judge John Roberts Jr., 49, was confirmed in 2003 for the U.S. Court of Appeals for the D.C. Circuit. He is thought of as one of the best lawyers ever to argue before the Supreme Court, but less is known publicly about his views. Associates of Roberts, who clerked for Rehnquist, vow that he is a strong and principled conservative. But some acknowledge that the conservative base could be reluctant to support him enthusiastically because of promises made during the nomination of Justice David Souter (news - web sites). Souter was a new federal judge in Boston when President George H.W. Bush nominated him in 1990. His supporters assured Republicans that he would be a solid conservative, but Souter instead has proven to be one of the court's most forceful liberal voices--even more liberal than Bill Clinton (news - web sites) appointee Stephen Breyer (news - web sites). Another judge who has recently moved onto the list is Michael McConnell, a former University of Chicago Law School professor who is on the U.S. Court of Appeals for the 10th Circuit based in Denver. McConnell was well-liked by his peers and enjoyed broad support from liberal law professors in his confirmation hearings, prompting some to suggest he has the right temperament to be chief justice. Judge Emilio Garza of the New Orleans-based 5th federal appeals court is seen as a less likely choice, said one of those familiar with the thinking in the White House, as is Judge Edith Jones of the same federal appeals court. Three other lawyers have been discussed for the spot but are not seen as strong contenders: former Solicitor General Ted Olson, former Deputy Atty. Gen. Larry Thompson and Sen. Jon Kyl (news, bio, voting record) (R-Ariz.). Other names expected When the time comes, the final choice may not be on the current list. As a retirement becomes evident, Republican leaders are expected to make suggestions. One name already being pushed is that of former Texas Supreme Court Justice Tom Phillips, a Harvard Law School graduate who received high marks in Texas for his leadership of that court. One person close to the White House speculated that he could become Bush's pick. The White House is leaning against elevating a current justice to Rehnquist's position, although Justice Clarence Thomas (news - web sites) is considered a favorite of conservative groups that turned out heavily for Bush in the 2004 election. Thomas is not thought to be seeking the top spot, and observers questioned why Bush would use political capital to get Thomas through as chief justice when he is already on the court. The same argument is made against elevating Justice Antonin Scalia (news - web sites), another favorite of conservatives. "What's the payoff?" said one former Bush administration official. Still, some note that elevating Scalia would give the White House more options. Whoever replaced him would be only an associate justice, so there would be less at stake, and the confirmation fight could generate less of a firestorm. In that scenario, the White House could consider a historic pick, such as California Supreme Court Justice Janice Rogers Brown, according to those familiar with the White House's views. Brown would become the first African-American woman on the court. But she would meet stiff resistance from Democrats, who blocked her nomination to a federal appeals court on grounds that she was too conservative. Supreme Court vacancy? With Chief Justice William Rehnquist expected to retire this year after more than 30 years on the court, the White House has begun the search for a replacement. TOP CONTENDERS J. Harvie Wilkinson, 60 Richmond-based U.S. Court of Appeals for the 4th Circuit; former University of Virginia law professor and author of several books on the law; mentor was the late Justice Lewis Powell, a moderate conservative J. Michael Luttig, 50 Richmond-based U.S. Court of Appeals for the 4th Circuit; as Justice Department lawyer in George H.W. Bush administration, helped win confirmation of Justices David Souter and Clarence Thomas; considered more aggressive and conservative than Wilkinson Judge John Roberts Jr., 49 U.S. Court of Appeals for the D.C. Circuit; before he became a judge, he was a top appellate lawyer and prominent advocate before the Supreme Court; little known publicly about his views Story Tools
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