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Supreme court shuffle { May 18 2003 } Original Source Link: (May no longer be active)
http://www.newsday.com/news/nationworld/nation/ny-uscort183290915may18,0,2671000.story?coll=ny-nationalnews-headlineshttp://www.newsday.com/news/nationworld/nation/ny-uscort183290915may18,0,2671000.story?coll=ny-nationalnews-headlines
Supreme Court Seat Shuffle? Judges' retirements would spark first shift in decades
By Timothy M. Phelps and Tom Brune
WASHINGTON BUREAU
May 18, 2003
Washington - Well-informed court observers say that there could be two Supreme Court resignations next month, Chief Justice William H. Rehn- quist and Associate Justice Sandra Day O'Connor, bringing the greatest upheaval on the court in 32 years.
Rehnquist's resignation is considered likely, though not certain, while O'Connor's is considered likely by some court insiders and less so by others.
The White House, however, is preparing for the possibility of two or three vacancies, because if Rehnquist is replaced by a sitting justice and O'Connor also goes, two seats but three positions will be open.
Yet another seat could open up if Justice John Paul Stevens, who is 83, retires, but that is considered unlikely.
While the speculation in Washington is that Justice Antonin Scalia would be elevated to chief justice, objections are being raised within the administration because of his age. Though Scalia is a very youthful 67, some feel a younger person should become chief justice to ensure long-term impact.
For some of the highly ideological conservatives who have, at least until now, held sway over President George W. Bush's court nominations, that person would be Justice Clarence Thomas, 54, who if anything has positioned himself to the right of Scalia. They say that despite his controversial background, the White House has not yet dismissed the idea.
With no change on the court in nearly a decade - the longest period without turnover in 180 years - the level of anticipation and preparation by groups on the left and the right is intense. Both sides expect a brutal battle, with the Republicans even threatening to force a legally questionable change in Senate procedure to prevent a Democratic filibuster. Such a move could itself force a constitutional crisis.
"What we're seeing now is a gearing up for that," said John Nowacki, who monitors judicial selection for the conservative Free Congress Foundation. "The conventional wisdom is that it will happen this year."
While Rehnquist's retirement would not necessarily change the court's voting patterns if he is replaced with another conservative, O'Connor has been a sometimes swing vote whose replacement could make the court more predictably conservative.
It would probably take at least one more retirement, however, to overturn the Roe v. Wade abortion decision.
No matter what the lineup, Democrats and Republicans in Washington take it for granted that given the opportunity, Bush will nominate the first Hispanic to the Supreme Court, appealing to what former acting Solicitor General Walter Dellinger called "the greatest up-for-grab group in American politics."
The leading candidate is White House counsel Alberto Gonzales, a 47-year-old longtime associate of the president from Texas who would probably garner support from otherwise liberal Hispanic groups.
But Gonzales, who served as Texas secretary of state under Bush and was appointed by him to the state's Supreme Court, is opposed by some who fear he will not be conservative enough, especially on abortion and civil rights.
Should there be another seat available, insiders suggest the inside track might go to Fourth Circuit Court of Appeals Judge J. Michael Luttig, a committed movement conservative and former Justice Department lawyer who advised Thomas through his contentious nomination battle.
Other names mentioned by well-informed sources are Deputy Attorney General Larry Thompson, a black Republican from Atlanta who gets high marks from both the highly conservative Federalist Society and the National Association of Criminal Defense Lawyers; Michael Chertoff, who has led the Justice Department's criminal division for the past two years and now is Bush's nominee for a seat on the Third Circuit; and Third Circuit Court of Appeals Judge Samuel Alito, a former U.S. attorney in New Jersey who was appointed to that court by Bush's father.
Driving the speculation that Rehn- quist, 78, will retire is an unusual courtesy call Rehnquist made to the White House on Dec. 20, ostensibly to make a pitch for a raise for judges. Because confirmation battles are particularly intense in an election year, and Bush will not necessarily be re-elected, a loyal Republican such as Rehnquist, and perhaps O'Connor, would probably choose this year to go.
Rehnquist, who has been on the court for 31 years, has at times in recent years expressed some frustrations with the job. O'Connor, who is 73 and became the first woman justice in 1981, has in conversation with friends remained very enthusiastic about her work, leading some to think she has no intention of retiring.
But others point to her recent publication of a book on her career and the extensive interviews she is giving - Judy Woodruff of CNN has a two-part interview with her Monday and Tuesday - as a sign she is wrapping it up.
In addition, reporters have noticed her husband, John, who is said by friends to be anxious to return home to Phoenix, has been coming to watch court sessions more frequently in recent months, as have other family and friends.
Other people mentioned by court watchers as court candidates include: Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson; a black woman, California Supreme Court Justice Janice Rogers Brown; and Fifth Circuit Court Judge Edith Jones, a hard-line conservative.
The most commonly mentioned Hispanic alternative to Gonzales is Fifth Circuit Court of Appeals Judge Emilio Garza, considered by many to be more conservative than Gonzales.
But Garza is an outspoken judge who has been passed over several times before.
On Thursday morning, Gonzales asked the leaders of the minority national bar associations in a meeting with them if they would support the president's nominee should a vacancy occur, said Duane Bradshaw, president of the National Hispanic Bar Association.
The bar leaders responded that it depended on the nominee. Gonzales ducked questions about his own candidacy.
The last time there were two vacancies on the court in one year was 1972, when President Richard Nixon appointed Rehnquist and Justice Lewis Powell.
Order In The Court
The possible resignations next month of Chief Justice William H. Rehnquist and Associate Justice Sandra Day O'Connor fuel speculation on who's in line to become the new top judge in the nation's top court.
CHIEF JUSTICE:
WILLIAM H. REHNQUIST
Age: 78
Nominated By:
Richard Nixon
Joined Bench:
Jan. 7, 1972
The Rumor:
Retirement likely but not certain
ASSOCIATE JUSTICE:
SANDRA DAY O'CONNOR
Age: 73
Nominated By:
Ronald Reagan
Joined Bench:
Sept. 25, 1981
The Rumor:
Retirement likely, depending on whom you ask
OTHER ASSOCIATE JUSTICES:
JOHN PAUL STEVENS
Age: 83
Nominated By:
Gerald Ford
Joined Bench:
Dec. 19, 1975
ANTONIN SCALIA
Age: 67
Nominated By:
Ronald Reagan
Joined Bench:
Sept. 26, 1986
The Rumor:
Has chief justice potential, but age is a concern
ANTHONY M. KENNEDY
Age: 66
Nominated By:
Ronald Reagan
Joined Bench:
Feb. 18, 1988
DAVID HACKETT SOUTER
Age: 63
Nominated By:
George H.W. Bush
Joined Bench:
Oct. 9, 1990
CLARENCE THOMAS
Age: 54
Nominated By:
George H.W. Bush
Joined Bench: Oct. 23, 1991
The Rumor: Possible contender for chief justice. Young age is on his side,
but will his conservative views help or hurt him?
RUTH BADER GINSBURG
Age: 70
Nominated By:
Bill Clinton
Joined Bench:
Aug. 10, 1993
STEPHEN G. BREYER
Age: 64
Nominated By:
Bill Clinton
Joined Bench:
Aug. 3, 1994
SOURCE: www.USCourts.gov
Copyright © 2003, Newsday, Inc.
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