REVIEW & OUTLOOK



REVIEW & OUTLOOK

Supreme Court Strategy

President Bush should give voters what they want: conservative Justices.

Tuesday, November 9, 2004 12:01 a.m.

The first post-election political skirmish is taking place over the Supreme Court, with President Bush getting lectures that his re-election victory means nothing when it comes to judges. Funny, that isn't what his opponents told us before the election.

Then they warned that the "future of the Supreme Court" for a generation was at stake, that if Mr. Bush won he'd have license to name more Antonin Scalias and Clarence Thomases to the federal bench. John Kerry said this explicitly. GOP Senate candidate John Thune, in South Dakota, and those in every race across the South made judges a central campaign issue. So now that they've won, why is Mr. Bush the one who is supposed to appoint different nominees than he named in the first term?

We'd say the President has an obligation, all right, but it's to the voters who elected him. His supporters sent a clear signal about the kind of judges they want nominated and confirmed. The Democrats who filibustered appellate court nominees for the first time in history are the folks who need to rethink their strategy.

To set the proper tone, Mr. Bush could begin his new term by re-nominating every candidate who was filibustered and is willing to go through the process again. All 10 nominees were highly qualified and had enough Democratic support to be confirmed if they hadn't been blocked by a liberal minority from receiving a full Senate vote. They include three women, an Hispanic, an African-American and an Arab-American. (See the nearby list.)

|The Filibuster 10 |

|Bush appeals-court nominees who have been blocked from a floor vote, and the |

|number of Democrats who support them. |

|Miguel Estrada |

|D.C. Circuit |

|4 |

| |

|Priscilla Owen |

|Fifth Circuit |

|2 |

| |

|William Pryor* |

|11th Circuit |

|2 |

| |

|Charles Pickering* |

|Fifth Circuit |

|3** |

| |

|Carolyn Kuhl |

|Ninth Circuit |

|2 |

| |

|Janice Rogers Brown |

|D.C. Circuit |

|2 |

| |

|William Myers |

|Ninth Circuit |

|2 |

| |

|Henry Saad |

|Sixth Circuit |

|1 |

| |

|Richard Griffin |

|Sixth Circuit |

|3 |

| |

|David McKeague |

|Sixth Circuit |

|3 |

| |

| |

|* Currently seated as recess appointment |

|** Includes Sen. Jim Jeffords (I., Vt.) |

| |

As for the Supreme Court, one or more vacancies seem highly likely in a second Bush term--or even earlier if Chief Justice William Rehnquist, who is 80 and seriously ill, retires before Inauguration Day. The nine current Justices have served together for 10 years, a modern-day record. Sandra Day O'Connor and Ruth Bader Ginsburg have had health problems. John Paul Stevens is 84.

In thinking about possible nominees, it helps first to understand the nature of the current court. Far from being conservative in the judicial sense of that word, today's court is controlled by the swing votes of two justices--Mrs. O'Connor and Anthony Kennedy--who lean left on such crucial issues as racial preferences, church-state relations, property rights, abortion and gay marriage. Especially if the Chief leaves, the court will need another conservative merely to maintain its current balance. That includes its mini-revival of federalism in the Lopez line of cases.

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We assume that Mr. Bush is listening to the warnings from key Democrats, who are already saying that a fight is inevitable no matter what. If that's true, and we believe it is, then Mr. Bush might as well nominate judges worth the battle. Selecting another blank slate like David Souter won't do him any good, because his supporters will object while the liberal opposition will still "Bork" whomever he sends up. Though sometimes said to be a "moderate"--no one really knows--White House General Counsel Alberto Gonzales will be pummeled because he signed off on the famous "torture memos."

So Mr. Bush might as well nominate the judicial likes of Ted Olson, Miguel Estrada, Janice Brown, Sam Alito, Edith Jones, Emilio Garza, Michael Luttig and J. Harvie Wilkinson, among others, and fight it out. They are all distinguished and in the judicial mainstream. If Democrats defeat one nominee, send up another, and another after that. If Mr. Rehnquist retires early, we'd recommend a recess appointment to forestall an immediate fight and give the new Justice time to establish himself. There have been 12 recess appointments in Supreme Court history. The most modern examples--Earl Warren, William Brennan, Potter Stewart--were all confirmed by the Senate.

This is the political context in which the weekend flap over Arlen Specter fits. The liberal Pennsylvania Republican is in line to become Judiciary Committee chairman, or at least he was until he hinted that he'd block conservative nominees. He later backtracked, but not before igniting a stop-Specter movement among conservative interest groups.

A Judiciary chairman's job is not to pretend that he's the second President but to facilitate a hearing in committee and a vote on the floor. If Mr. Specter wants to vote against a nominee, so be it. But in his institutional role he owes it to his party, and to the President who saved him from political oblivion in the Pennsylvania primary this year, to guarantee every nominee an expeditious floor vote. If Mr. Specter can't make that promise to his colleagues when they organize the new Senate, he doesn't deserve the job.

In the campaign that just ended, liberals warned time and again that the future of the Supreme Court was at stake in this election. They were right, as we assume Mr. Bush will soon demonstrate.

Copyright © 2005 Dow Jones & Company, Inc. All Rights Reserved.

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