Nomination Watch

C. Boyden Gray agrees with us: judicial philosophy matters!

In an article about various groups’ preparations for a Supreme Court battle, the Washington Post today reported that if Chief Justice Rehnquist steps down, C. Boyden Gray’s group the Committee for Justice “plans to orchestrate tributes to [Chief Justice Rehnquist] for conservatively interpreting the Constitution and promoting religious freedom, saying that this record needs to be extended and enhanced by a like-minded nominee.” 

Unless there is more than one C. Boyden Gray running around out there, this marks a shift for Mr. Gray, who in 2001 testimony before the Senate said that a nominee’s judicial ideology should not matter in selecting a judicial nominee.  In his own words:

“If the goal of today’s hearing is to answer the question, ‘Should ideology matter?’ I can answer in one word:  No.”

At that time, Mr. Gray disagreed with position advocated by our own Marcia Greenberger, who testified in the same Senate hearing that the Senate should continue its historical practice of considering a nominee’s judicial philosophy when evaluating him or her for a lifetime seat on the federal courts.

It’s great to know that Mr. Gray has come around, and that both sides now agree that judicial philosophy is a relevant consideration in evaluating a judicial nominee! 

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Register for today’s event with Barbara Boxer

Time is running out to reserve your spot for today's exciting event with Senator Barbara Boxer.  Click here or on the ad to the right to register now!

Supreme Court Term Ends without a Retirement --But Stay Tuned

The Supreme Court ended its term today without the expected retirement of Chief Justice Rehnquist.  So what does this mean?  We wouldn’t exhale just yet.  As it was widely reported today in the LA Times and USA Today, the buzz is still around a Rehnquist retirement and the list of possible conservative replacements.  The expectation is that the President is likely to nominate someone who will tilt the high court further to the right. 

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Pop quiz: Are your reproductive rights secure?

No!  Unfortunately, it is a myth that a woman’s right to choose is secure from legal attack.  It’s true that in 1973 the Supreme Court decided Roe v. Wade, and declared that the Constitution protects a woman’s right to choose to have an abortion.  It’s also true that the overwhelming majority of Americans do not want to overturn the Roe v. Wade decision, as polls continue to demonstrate  -- as recently as this month.

However, when the Supreme Court most recently considered a case about abortion, 4 of the 9 Justices made it clear that they support either overturning Roe v. Wade or chipping away at it to the point that the right to choose would be almost meaningless.  Both Justice Scalia and Justice Thomas have said, “We believe Roe v. Wade was wrongly decided and that it can and should be overruled.”  Justice Thomas has even said there is no right to privacy at all.  And these are the two Justices President Bush has said are his model Justices.

If Roe were overturned, even the fact that most Americans support reproductive rights will not be enough to stop many states from making abortion illegal.  A study by the Center for Reproductive Rights showed that if Roe were overturned, 30 states would probably make abortion illegal within one year.

Of course, the President can avoid going down this dangerous road -- and a collision with American public opinion -- by naming someone to the Supreme Court who will respect and uphold the right to choose.

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How to fill a Supreme Court vacancy: Spend $20 million in the blink of an eye?

Recent news reports suggest that some supporters of the Administration think the way to avoid a huge fight over the Supreme Court is  . . .

Were you going to guess consultation with the opposing party, to ensure a moderate, consensus nominee?  Optimistic guess, but you’re wrong.  Instead, it seems, the plan is to rush any nominee the President comes up with through the Senate under a heavy barrage of paid advertising. 

Last week Roll Call reported (subscription required; a free excerpt of the article is here) that some Senate Republicans want to move a nominee through the Senate in just a few weeks, in order to “delay the amount of time liberal activists would have to attack the nomination.”  On the same day, two conservative groups announced that they intend to jointly spend over $20 million promoting whoever President Bush’s names to the Supreme Court.  Yesterday one of those groups, Progress for America, announced a “warning shot” in the form of a $700,000 ad campaign that attempts to paint the past battles over controversial judicial nominees as partisan attacks by liberals. 

What’s wrong with all this?  The fact that these advocates and, worse, Senators, are treating the Senate’s scrutiny of a Supreme Court nominee as a pesky hoop that a nominee has to jump through, instead of as an integral part of the Constitutional process for selecting Justices who will sit on our nation’s highest court for decades to come.  The idea that the process should be rushed because there might be criticism of the nominee turns the whole point of Senate confirmation on its head.  The Senate’s job is to carefully evaluate any nominee, especially a controversial one, because once a person has been confirmed to the Supreme Court there is essentially no way to remove him or her. 

And while outside groups should certainly be free to voice their opinions about nominees, the fact that Progress for America is spending hundreds of thousands of dollars to defend the President’s nominee without even knowing who that nominee will be shows that it has completely lost sight of the purpose of the Senate’s role.  Public debate on a Supreme Court nomination is healthy; pre-emptive attempts to squelch that debate are not.

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If Rehnquist retires, does it matter who comes next? (Yes.)

It may be tempting to think that just because Chief Justice Rehnquist is conservative, it doesn’t really matter if President Bush names another conservative to replace him when he retires.  And the Supreme Court Nominations Blog has done an analysis of the Supreme Court’s last several terms which concludes that Rehnquist didn’t cast the deciding vote in very many controversial cases in the last five years. 

It would be a mistake, though, to conclude that who replaces Chief Justice Rehnquist is no big deal. 

First, not all conservative Justices are alike.  While Chief Justice Rehnquist is undeniably conservative, there are significant differences between him and Justices Justices Scalia and Thomas – and we focus on those two not because we picked their names out of a hat, but because President Bush has identified them as his model Justices.  Both of these Justices are more hostile to women’s fundamental rights than is Chief Justice Rehnquist, so a court with more members like Scalia and Thomas could, in the long run, limit women’s rights in ways the current Court has not. 

For instance: 

• Equal protection of the laws:  Justice Scalia was the only member of the court who argued that the state-run Virginia Military Institute should be allowed to exclude women from admission based on stereotypes about the way women learn.  Chief Justice Rehnquist agreed with the majority of the Court that excluding women violated the Equal Protection Clause of the Fourteenth Amendment.  (Justice Thomas didn’t participate in this case.)
• Affirmative action:  Justices Thomas and Scalia both believe that affirmative action is always unconstitutional, while Chief Justice Rehnquist agrees that the important goal of educational diversity could justify affirmative action programs in some cases. 
• Congress’ power to pass laws important to American women:  Justices Thomas and Scalia voted to strike down part of the Family and Medical Leave Act, while Chief Justice Rehnquist wrote that the Congress was acting within its power to combat sex discrimination when it passed the law.

For more examples, see here (.pdf file).

Second, as Howard Bashman pointed out on the blog How Appealing, “it's impossible to measure the impact [a given Justice’s vote] would have in the future in cases and on issues we cannot even imagine now.”  We agree that it’s impossible to know what the makeup of the Supreme Court will be over the 30 or 40 years that a new Justice will likely serve on the bench, and what impact that new Justice would have.  And, we’d add: we do know that even one new Justice in the mold of Clarence Thomas or Antonin Scalia could be in a position to do serious harm to women’s rights for decades to come.

Third, it’s important to remember that Rehnquist is not just any Supreme Court Justice—he’s the Chief Justice.  Thus, if he retires there will be an opening for Chief Justice.   While the Chief Justice’s vote doesn’t have any more weight than those of the other eight Justices, he can influence the Supreme Court’s decision-making in other very real ways, such as by assigning who writes opinions.  For more information, see here (.pdf file).

Bottom line: yes, it’s a pretty big deal.

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The White House’s Supreme Court Short List

The Chicago Tribune today has the first article (free registration required) we’ve seen on potential Supreme Court nominees that cites “senior White House officials” rather than just outside speculation.  The article reports that the White House has been interviewing potential nominees in preparation for an opening on the Supreme Court, and that the top contenders are: Attorney General Alberto Gonzales, Judge J. Michael Luttig of the 4th U.S. Circuit, Judge Samuel Alito of the 3rd Circuit, and Judge John Roberts of the D.C. Circuit.

Others named in the article are Judge William Pryor of the 11th Circuit, Judge J. Harvie Wilkinson of the 4th Circuit and Judge Michael McConnell of the 10th Circuit.  However, the article suggests that Wilkinson, at 61, may be considered too old, and that McConnell, whom other news articles have often mentioned as a top contender, may be too “unpredictable.” 

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What’s that flashing pink thing on the right? A unique online event with Senator Barbara Boxer

We are happy to announce a free event next week featuring U.S. Senator Barbara Boxer and Nominationwatch.org Executive Editor (and NWLC Co-President) Marcia Greenberger.  As you can see from the ad to at the top of this page, this event is entitled “The Courts and What’s at Risk for America’s Women,” and will occur at 1 p.m. Eastern Time on Wednesday, June 29. 

Senator Boxer has long been a driving force in the fight to ensure that our federal courts protect women’s rights.  In 1991, when Clarence Thomas was nominated to the Supreme Court, then-Representative Boxer led a group of women members of the House as they marched to the Senate to demand that Anita Hill’s allegations of sexual harassment be taken seriously.  In recent years she has continued to speak out on the courts and women’s rights. 

Senator Boxer is joining NWLC for this event because, in her words, “As the Senate debates critical judicial nominations, the stakes for women have never been higher. All of us must play a role in getting the word out, and I am eager to help.”

You can register to participate (by phone or by live online chat) and submit questions for the call by clicking here or on the ad on the side of this page.

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June: A popular month for weddings, Supreme Court retirements

The blogosphere has been full of speculation about whether and when Chief Justice Rehnquist will announce his retirement at the end of the Supreme Court’s current term, a.k.a. the end of June.  The conservative blog ConfirmThem confidently reported earlier this month that Rehnquist would step down within four weeks.  However, as Lyle Denniston noted in a post entitled The Rehnquist Riddle on the Supreme Court Nomination Blog, while there are numerous reasons (his age, the lack of a Congressional election this year) to think that the Chief Justice will retire, there are also numerous other reasons (his apparently rallying health, his pride) to think he will not.  Even Article III Groupie, the provider of “news, gossip, and colorful commentary about the federal judiciary,” got into the act by noting that Justice O’Connor hired only three clerks for next year, and offering “her personal (and completely unsubstantiated) theory” that Justice O’Connor “is saving a fourth spot for one of Chief Justice Rehnquist's hires, in case the Chief retires from the Supreme Court at the end of this Term.” 

Whew!  Well, Chief Justice has not let us in on his plans, but we can add a bit of historical perspective.  Over the last several decades, late June has been a very popular time for Supreme Court Justice retirements, and, to a lesser extent, nomination announcements.  Here are the details:

Retiring Justice	Retirement Announcement	New Nominee	Nomination Date
Harry Blackmun	April 6, 1994	Stephen Breyer	May 16, 1994
Byron White	March 1993	Ruth Bader Ginsburg	June 14, 1993
Thurgood Marshall	June 27, 1991	Clarence Thomas	July 1, 1991
William Brennan, Jr.	July 20, 1990	David Souter	July 23, 1990
Lewis F. Powell, Jr.	June 26, 1987	Robert Bork; Douglas Ginsburg (neither were confirmed); Anthony Kennedy	July 1, 1987 October 29, 1987 November 11, 1987
Warren Burger	June 17, 1986 (had informed President on May 27)	William Rehnquist (to be Chief Justice) Antonin Scalia (to be Justice)	June 17, 1986
Potter Stewart	June 18, 1986 (had informed President on May 18)	Sandra Day O’Connor	July 7, 1981
William O. Douglas	November 12, 1975	John Paul Stevens	November 29, 1975

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Senate Democratic leaders still waiting for the phone to ring

The press has been reporting for weeks that the White House is vetting possible nominees to the Supreme Court.  As we discussed in this earlier post, the “Gang of 14” Senators whose deal averted the nuclear option agreed that the President should consult with the Senate before picking a nominee – as required by the advice and consent clause of the Constitution.  After all, naming someone with broad, bipartisan support could avoid a knock-down, drag-out fight and be good for the country. 

President Bush recently offered a glimmer of hope that he might go the consultation route when he said, “I look forward to talking to the Senate about the Supreme Court process, to get their opinions as well.”

So, has the Administration actually consulted leaders of the opposition party in the Senate?  Apparently not.  An article in Roll Call (subscription required) yesterday reported that when asked whether he had been consulted, Minority Leader Harry Reid (D-Nev.) replied, “Not me.”  And earlier this week Senator Patrick Leahy, the ranking Democrat on the Judiciary Committee, went to the Senate floor to reiterate his past pleas for a chance to work with the White House—but made clear that President Bush hasn’t talked to him either.  So far, Senate Democrats are still waiting by the phone, and it’s not ringing. 

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