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LEGAL AFFAIRS - Psst! Pass It on. The Successor to Rehnquist Will Be ... LEGAL AFFAIRS - Psst! Pass It on. The Successor to Rehnquist Will... LEGAL AFFAIRS - Psst! Pass It on. The Successor to Rehnquist Will Be .... LEGAL AFFAIRS - Psst! Pas...

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LEGAL AFFAIRS - Psst! Pass It on. The Successor to Rehnquist Will Be ...

April 28, 2001

As George W. Bush passes the 100-day mark, he faces an unusual problem for a new President: Time is already running out on his ambition-advertised during last year's campaign-to make the Supreme Court more conservative.

Washington has been abuzz for months with Supreme Court-retirement speculation, mostly centering on 76-year-old Chief Justice William H. Rehnquist and 71-year-old Justice Sandra Day O'Connor. She is said to have told friends she would like to retire. He is considered more likely to do so by some in the conservative legal network, which includes many Rehnquist friends and former clerks.

Both may well fool people, some court watchers say, by staying on for years to come, but liberal groups are taking no chances. Still steaming about the naked partisanship (as they see it) of the Dec. 12 decision in Bush vs. Gore-in which Rehnquist and O'Connor helped make Bush President-liberals are raising money, rallying troops, researching the records of possible Bush nominees, and readying rhetorical rapiers for the mother of all confirmation battles.

Bush suggested last year that he would appoint judges in the mold of Antonin Scalia and Clarence Thomas, who are currently the Court's most conservative members. That was when Republicans had a 54-46 Senate majority. Now, with ideological polarization over judicial appointments at (or close to) a high, it would be hard to get a conservative nominee past the 50-50 Senate. But next year-when Congress will be preoccupied with the midterm elections-it would be even harder.

Justices are not supposed to let political calculations influence them, of course. But they are only human. Legend has it that the late Justice Thurgood Marshall told clerks during the Reagan Administration: "If I die while that man's President, just prop me up and keep on voting." And Rehnquist recently told television host Charlie Rose of PBS: "I think [that] traditionally, Republican appointees have tended to retire during Republican Administrations. And Democratic appointees during Democratic Administrations. It's not invariable. But there's surely a slight preference for that." All Justices naturally hope for the survival of the legal principles most dear to them, such as the recent line of 5-4 decisions expanding states' rights, which would probably be overruled if either Rehnquist or O'Connor were to retire on a Democratic President's watch.

So perhaps they have given some thought to how they could best seek to perpetuate their states' rights principles, among others, while at the same time ensuring an orderly succession, avoiding a bloody confirmation battle, making some history, and helping Bush put his stamp on the Court and enhance his political capital.

Here's how: The conservative Rehnquist retires in late June, at the end of the Court's current term. Bush nominates the more centrist O'Connor (who defers any thoughts of retiring) to be Chief Justice. He picks a politically unassailable states' righter-most likely 45-year-old White House Counsel Alberto R. Gonzales-to fill the resulting vacancy. The Democrats, who have been spoiling for a fight, would see no advantage in trying to block the popular O'Connor-who supports abortion rights-from becoming the first female Chief Justice. Nor would they block an up-from-poverty Latino such as Gonzales from becoming the first Hispanic Justice. Both would easily win confirmation amid bipartisan hosannas to diversity. Bush would rack up political points with women and Hispanics.

And then we would wait for months, perhaps years, to find out whether Bush had moved the Court to the right (or the left). The answer would depend on whether Gonzales-whose record, including two years on the Texas Supreme Court, sheds little light on his leanings-proves to be even more conservative than Rehnquist. That's not very likely. But Gonzales does seem a good bet to uphold Rehnquist's precedents on states' rights, at least.

This scenario is not a prediction. It depends on two highly speculative assumptions: that Rehnquist is ready to retire and that O'Connor would be happy to stay on as chief. There are, of course, many other scenarios. Among them:

* Rehnquist retires. O'Connor becomes Chief Justice. But rather than choosing Gonzales, Bush goes to someone more pleasing to the Republican Right, such as J. Michael Luttig, of Alexandria, Va., or Emilio M. Garza, of San Antonio, both federal appellate judges much more experienced and better qualified than Gonzales by the traditional (race-neutral) measures. Although replacing Rehnquist with another conservative would not tip the Court's balance, liberals would still go to war. They might well be able to stop a white male like Luttig, despite his stellar scholarly qualifications. Garza's Mexican-American ancestry would make him harder to beat.

* Both Rehnquist and O'Connor retire. Bush names two strong conservatives to replace them. That would tip the Court's balance to the right-if they were confirmed-on some big issues on which the pivotal O'Connor has aligned herself with the Court's liberals, including abortion, gay rights, and (to a limited extent) race-based affirmative action. But don't bet on Bush attempting such a move. It would provoke an all-out assault by Democrats-whose Senate leader, Thomas A. Daschle, has vowed to mount a filibuster in such a situation-probably ending in the defeat of one or both nominees. And the bitterness of the battle would cast a pall over Bush's first year in office.

* Rehnquist and O'Connor retire. Bush seeks to strike a deal with Senate Democrats by choosing a Chief Justice acceptable to them-possibly even Justice Stephen G. Breyer, a Clinton-appointed Democrat respected by key Senate Republicans-if the Democrats agree to confirm both (say) Gonzales and a favorite of conservatives to fill the vacancies. One prospect said to be on the White House radar screen is California Supreme Court Justice Janice Rogers Brown, an African-American whose strong conservative-libertarian views and opposition to racial preferences have impressed some politically connected conservatives (such as Clint Bolick).

* None of the Justices retires, either this year or next. All nine seem in good health, including the Court's oldest and most liberal member, John Paul Stevens, who turned 81 on April 20. (He has expressed no interest in stepping down.) Rehnquist has hired clerks for the Court's next term. And O'Connor has done so for the next two terms.

With all these variables, one constant is that Bush seems eager to put the first Hispanic Justice on the Court. Of the two leading prospects, the 53-year-old Garza has a far more conservative judicial record, including a 1992 opinion arguing that "the decision to permit or proscribe abortion is a political choice" which the Supreme Court should leave to the states. He would draw furious opposition, at least if named to replace O'Connor, which would narrow the pro-abortion-rights majority to a shaky 5-4.

The dignified, forceful Gonzales seems to have the inside track. A close Bush confidant from Texas who was virtually unknown in Washington a year ago, he was raised in humble circumstances by parents who never got past elementary school, graduated from Harvard Law School, spent 13 years as a business lawyer with a large Houston-based firm (Vinson & Elkins), and became a key member of then-Gov. Bush's inner circle as his legal counsel from 1995-97 and as Texas secretary of state from 1997 to late 1998, when Bush put him on the Texas Supreme Court. Gonzales spent just under two years there before Bush made him White House counsel. He has pleased conservatives (and worried liberals) by putting several high-powered conservative veterans of Washington's legal-political wars on his 12-lawyer staff, and by ending the special role that the American Bar Association (now seen by conservatives as a liberal interest group) had played since 1953 in rating the qualifications of prospective judicial nominees.

At the tender age of 45, Gonzales-like Clarence Thomas at the time of his 1991 nomination-does not yet have the experience or professional stature to be considered highly qualified to sit on the Supreme Court, let alone to be Chief Justice. And the same bland paper trail that presents potential critics with so little ammunition makes some conservatives nervous. It's a bit reminiscent of David H. Souter, whom Bush's father chose in 1990, in part because Souter's own paper trail was so unrevealing. Souter ended up joining the Court's liberal wing on big issues such as abortion, racial preferences, and religion. And "no more Souters" has become a conservative mantra.

Liberals find it hard to imagine that Bush would put another Souter on the Court and thereby replicate what many Republicans call his father's worst mistake. The President, of course, knows far more about where Gonzales fits on the ideological spectrum than the rest of us do. But he isn't about to tell us. Why should he?

Stuart Taylor Jr. National Journal

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