Courting Justices

The future of the Supreme Court under President Bush

By Mike Davis
From the December 2004 Print Edition

The left’s laundry list of atrocities President Bush will commit in his tragic four more years includes the disastrous appointment of conservative ideologues to the Supreme Court, forcing women to use coat hangers and sending minority children to asbestos-ridden schools lacking electricity. Many Republicans have similarly unreasonable expectations, falsely thinking the President will veer hard right with his appointments and the 55-Republican Senate will rubber-stamp any nomination sent to the Hill. But the reality of Supreme Court appointments is far more complicated and nuanced, even with glorious single-party rule. Democratic President Franklin Roosevelt appointed the father of modern conservative judicial thought, Justice Felix Frankfurter. A Democrat appointed half the dissenters in Roe v. Wade; a Republican appointed its author and five that agreed. A Republican appointed most of the Warren Court.

For anyone with a passing interest in Supreme Court appointments, or anyone looking for a paper topic in Political Science 157, David Yalof’s Pursuit of Justices provides a detailed analysis of the selection of justices. The following is a synopsis of Yalof’s framework as applied to the current Court.

There are three seats generally expected to open up during this next presidential term. Chief Justice William Rehnquist, a Nixon appointee and the longest-sitting member, is the most visible member looking to retire, while John Paul Stevens and Sandra Day O’Connor are also on the list, leaving Antonin Scalia, Clarence Thomas, Anthony Kennedy, David Souter, Stephen Breyer, and Ruth Bader Ginsburg.

President Bush will likely use one of three methods for picking a replacement. Using the simplest model, a president looks for the most qualified candidate, or the most likely to garner Senate approval, after an unexpected opening occurs, taking stock of the current political environment and choosing a replacement in line with his overall goals. Given the controversial nature of the Court and presidents wanting to extend legacies past their political careers, this approach is almost never used in modern politics.

More common is the single-candidate approach. A president who owes political favors — as Eisenhower did Earl Warren — or has a particular regard for a specific candidate may designate that individual to the next open seat regardless of the political environment or the characteristics of the outgoing justice. Such approaches are dangerous to a president unless there is extremely favorable Senate and public support.

Most common is the criteria-driven approach, where a president sets filters to find suitable candidates, as Eisenhower did when he demanded an experienced, Catholic, Democratic state judge under the age of sixty and found William Brennan.

Probably the largest factor for replacements in this cycle will be how a candidate’s judicial philosophy interacts with the remaining sitting members’. Each justice has a particular framework for constitutional interpretation and usually champions one or two discrete issues. Rehnquist has made his mark in constitutional law by elevating the power of the states against the power of the federal government while harmonizing or modifying past precedence as much as possible. O’Connor has long been a moderating force on the Court, deferring to stare decisis, which is why she upheld Roe although she is pro-life, and focuses on equal protection. Stevens’ interpretative style almost defies categorization — he dissents more than any other justice — though he does help form the liberal bloc on high-profile cases. Scalia and Thomas stick to a textual interpretation, while Kennedy looks heavily to past precedence and is a staunch defender of free speech and privacy. Breyer, who worked for Senator Ted Kennedy and with the Senate Judiciary Committee, increases congressional authority whenever possible. Souter and Bader Ginsburg prefer to make up the law as they go.

A conservative replacement for Rehnquist will pass the Senate with relative ease, either by appointment directly to the Chief’s seat, or by elevation of a sitting justice — most likely Kennedy — in which case the new member would fill the open seat. However, that same candidate would surely incite more controversy and organized opposition if replacing Stevens, as a shift that large would dramatically upset the Court’s balance, as Robert Bork’s appointment to swing Justice Lewis Powell’s seat showed. A conservative replacement for Stevens may pass relatively free of controversy if President Bush elevates one of the liberal justices to the Chief’s seat, most likely Ginsburg. The left would be hard-pressed to turn down one of their own as the first female chief justice, and launching a fight against the conservative replacement would place Ginsburg’s elevation in jeopardy.

President Bush has long said he will not nominate any candidate using a litmus test for particular issues, specifically Roe. Seeking to placate opponents, or at least tone down their rhetoric, he drifts into the nebulous region of “loose” versus “strict” constructionists. It’s easy for Bush to promise not to have Roe in his sights when appointing replacements — even if overturning Roe were a top priority, he’d have to overcome a 6-3 deficit. And Republican appointees, for all the vitriol aimed at them, usually leave Roe alone. To get the Court to strike down Roe even by a slim 5-4 ruling, he’d have to replace Rehnquist, O’Connor and Stevens with justices consistently willing to strike down a decision made by six Republican appointees and one Democratic appointee. Even now, Republican appointees O’Connor, Kennedy, Souter, and Stevens join with Democratic appointees Breyer and Ginsburg to uphold it.

If history is to be a guide, President Bush will find himself largely in the same position as Roosevelt. A wartime president with economic troubles and comfortable single party rule, Roosevelt appointed justices who would uphold his New Deal legislation. Like Roosevelt, Bush will appoint justices willing to uphold the constitutionality of his legacy. We may expect Bush to appoint a range of conservative to moderate-left justices who will split roughly the same as this Court has on controversial issues but will uphold the constitutionality of his efforts to combat terrorism.

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