- The Washington Times - Saturday, November 6, 2004

In addition to President Bush’s resounding electoral triumph, his expansive coattails also will likely have a long-reverberating political impact upon the Senate. That potent combination has understandably generated speculation that the president’s second term could include a long-term transformational realignment of the Supreme Court.

Had Mr. Bush lost the election, he would have become only the second president to serve at least one full term without the opportunity of nominating a Supreme Court justice. (Jimmy Carter was the first.) Now Mr. Bush seems poised to make perhaps three such appointments in his second term, and as many as four — or more.

Of immediate concern is Chief Justice William Rehnquist’s battle with thyroid cancer. Related health problems may lead the 80-year-old jurist, whom Richard Nixon nominated in 1971 and whom Ronald Reagan elevated to chief justice in 1986, to retire earlier than he intended. Justice John Paul Stevens, who has survived prostate cancer, is 84 years old, while Sandra Day O’Connor, a breast-cancer survivor, will celebrate her 75th birthday in March. The average age of the nine justices exceeds 70 years. That’s about three years greater than the average age of the nine justices when Mr. Reagan, who eventually appointed a chief justice and filled three associate justice vacancies, was inaugurated in 1981.

Concerning today’s average justice age of 70 years, 7 months: A study by John Yoo (a former Justice Department official under Mr. Bush who is now a law professor at the University of California at Berkeley) revealed that over the past century Supreme Court justices retired at the average age of 71, following an average tenure of 14 years. The ages and court tenures of Justices Rehnquist, Stevens and O’Connor already significantly exceed those averages. Meanwhile, sometime during Mr. Bush’s second term, Justices Ruth Bader Ginsburg (71 and a colon-cancer survivor), Antonin Scalia (68) and Anthony Kennedy (68) will each satisfy these average criteria for retirement. Justice Stephen Breyer will turn 70 during Mr. Bush’s second term, while Justice David Souter will be 69 in 2008. Justice Clarence Thomas, 56, qualifies as the court’s youngster.

If Father Time augurs for a spate of Supreme Court nomination opportunities, then the Republicans’ vastly improved Senate position — indispensably assisted by the president’s extraordinarily long coattails — suggests an easier path toward confirmation. To be sure, there are no guarantees, as long as Democrats persist in pursuing filibusters to block up-or-down votes in the Senate. Nevertheless, with 55 GOP senators in the next Congress, Mr. Bush’s party will be four votes closer to the 60 needed to thwart filibusters than it was before Tuesday’s election.

How those gains were achieved is well worth recounting. Mr. Bush’s 22-point victory margin in South Dakota, for example, helped Republican John Thune narrowly defeat Senate Minority Leader Tom Daschle, the three-term Democratic incumbent who played the role of chief obstructionist throughout the president’s first term — particularly by leading those filibusters against Mr. Bush’s appellate-court nominees. Meanwhile, Mr. Bush’s impressive victory margins in five Southern states (Georgia, 18 points; South Carolina, 17; Louisiana, 15; North Carolina, 13; and Florida, 5) were instrumental in helping the Republican candidates capture all five of those states’ Senate seats, all of which were vacated by retiring Democrats. The president’s extraordinary popularity in Kentucky and Alaska, where he racked up respective victory margins of 20 and 27 percentage points, significantly helped GOP Senate incumbents achieve narrow victories of 2 and 4 points, respectively.

Late in the presidential campaign, the Supreme Court became a major issue. Voters were reminded that Mr. Bush had expressed solid agreement in 2000 with the conservative judicial philosophy of Justices Scalia and Thomas. John Kerry pledged to apply an abortion litmus test to his nominees. So, voters knew the stakes and the candidates’ views. Nor was the 2004 election the first in which Mr. Bush attacked Senate Democrats for their tactics preventing up-or-down votes on his judicial nominees. In 2002, the president and Republicans made those tactics an issue in the campaign against the late Paul Wellstone, whose seat following his untimely death was captured that year by the GOP. Incumbent Democratic Sens. Jean Carnahan and Max Cleland lost their seats in 2002 partly due to the judicial-nomination issue.

During the next Congress, when the Senate will consider dozens of appellate-court nominations and perhaps one or more Supreme Court nominations, Democratic Sens. Maria Cantwell of Washington, Mark Dayton of Minnesota, Debbie Stabenow of Michigan and Jon Corzine of New Jersey would do well to consider the electoral fates of Mr. Daschle, Mr. Cleland and Mrs. Carnahan. All four won their first terms with 50 percent or less of the vote in 2000; all disgracefully voted to filibuster the appellate-court nomination of Miguel Estrada; and all face voters in 2006.

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