- The Washington Times - Monday, October 4, 2004

With up to three Supreme Court retirements expected in the next four years, the next president could play a huge role in tilting a court that is nearly evenly balanced — if any of his nominees can pass the Senate.

“All reliable sources indicate that there will be between one and three retirements over the next four years, so everything we’ve seen happen for this first term for [President] Bush has been the warm-up round for the Supreme Court,” said Sen. John Cornyn, Texas Republican and a member of the Senate Judiciary Committee, which is charged with reviewing Mr. Bush’s nominees.

With the court divided nearly evenly, the next president probably will shape how the high court will handle key cases about the war on terror and the definition of marriage, which are winding through the lower courts. However, House Republicans have moved to strip the court of jurisdiction over marriage cases.

Both Mr. Bush and his Democratic opponent, Sen. John Kerry, mention the Supreme Court on the stump, drawing strong applause from partisans when they make similar pledges to nominate judges who will respect the law.

But senators and court-watchers say there are clues as to what sort of judges each candidate might appoint.

Four years ago, during his campaign against Democrat Al Gore, Mr. Bush said if elected he would look for justices in the mold of Justices Antonin Scalia and Clarence Thomas. Republicans said they still expect that.

“I don’t think anything has changed. That’s one thing about President Bush — whether you like him or not, he’s steady,” Mr. Cornyn said.

He said Mr. Bush’s names show that he wants justices who will referee constitutional questions, not write new standards.

“I think what he’s referring to is he believes judges should not make political decisions or make policy from the bench, but rather determine whether decisions made by the political branches are lawful,” Mr. Cornyn said.

Sen. Richard J. Durbin, Illinois Democrat and a member of the Judiciary Committee, said Mr. Bush’s future nominees can be predicted by whom he named to the lower courts in his first term.

“There are things we can say based on his nominations: Number one, it appears the hottest ticket to the bench in the Bush White House is the Federalist Society,” said Mr. Durbin, referring to the conservative and libertarian law group, adding, “It doesn’t hurt when it comes to the Bush guidelines that you’ve made some rather outrageous statement in the past.”

For his part, Mr. Kerry has been silent on who he would model his nominees after.

“He’s never gotten into that,” said Chad Clanton, a spokesman for the campaign.

But Mr. Durbin said indications are that Mr. Kerry would not try to make huge waves.

“Kerry and his presidency won’t be nearly as bold politically as the Bush White House and will probably move toward the Clinton model — to try to find someone who is moderate and progressive,” Mr. Durbin said.

Mr. Kerry has either voted with or announced his support for every filibuster that Democrats are conducting in the Senate, and Mr. Durbin said Mr. Kerry’s views on confirmations are a good indication of his philosophy on nominees.

In June, Mr. Kerry told Minnesota Democrats that he was prepared to filibuster “any Supreme Court nominee who would turn back the clock on a woman’s right to choose or the constitutional right to privacy, on civil rights and individual liberties and on the laws protecting workers and the environment.”

“The test is basic — any person who thinks it’s his or her job to push an extreme political agenda rather than to interpret the law should not be a Supreme Court justice,” Mr. Kerry said.

Michael S. Greve, a court-watcher at the American Enterprise Institute, said that description fits a host of potential nominees whom Mr. Kerry could rely on to vote reliably with the rest of the court’s liberals, but who also would be confirmable in the Senate.

“There are just tons of people in the academy and on the benches, so you wouldn’t see any drag-out fights,” he said. “The model here is Ruth Bader Ginsburg, Stephen Breyer.”

Elliott Mincberg, legal director at People for the American Way, a key liberal advocacy group on nominations, said those types of names will be just fine with Mr. Kerry’s base.

“I don’t think progressives are insistent the way the far right is in looking for people with pre-determined ideologies,” Mr. Mincberg said. “I think the far right was extremely upset about the Souter nomination.”

Mr. Greve agreed, saying Republicans are still smarting over Justice David H. Souter, who was named by President Bush’s father and has sided with the liberals on the court on nearly every issue. He said Republicans intend to prevent that from happening, which means nominating a conservative with an established paper trail.

“I don’t see any scenario that doesn’t mean an awful lot of blood on the floor,” he said. “The option that a Democratic president has, which is a sort of respectable liberal, is much harder to exercise for a Republican, because a respectable Republican is the next David Souter.”

Mr. Bush has run into a Democratic blockade on some of his most contentious nominees for the lower federal courts.

Democrats initiated filibusters against 10 nominees. Mr. Bush made recess appointments for two of those nominees, and another, Miguel Estrada, the first nominee to face a filibuster, withdrew his name.

But Democrats say they’ve been far more accommodating to Mr. Bush than those numbers suggest. Senate Minority Leader Tom Daschle, South Dakota Democrat, says they’ve confirmed 201 judicial nominees, and Democrats said that record compares favorably with recent presidential terms.

“I think the president’s batting average, even on circuit courts, is pretty high,” Mr. Durbin said.

It’s possible there will be no retirements from the Supreme Court. Former Solicitor General Walter E. Dellinger III, speaking on C-SPAN last week, said such predictions have been wrong before.

“In 1996, when the election campaign ran, people said it’s about the Supreme Court, and there were no vacancies. Then in 2000, people said the election is about the Supreme Court, and there were no vacancies,” Mr. Dellinger said. “Now we’re in 2004, and people say it’s about the Supreme Court and maybe there will be vacancies and maybe there won’t be. One year, they’re going to be right.”

Mr. Greve said some of the justices probably hesitated to retire in the past four years because they were responsible for halting the Florida vote recount that solidified Mr. Bush’s victory over Mr. Gore.

“That must have gone through their minds,” he said. “Barring another Florida-style debacle and another presidential election in the Supreme Court, there is actually now the option of retiring for whoever wants to retire.”

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