On Law

Jewish World Review Nov. 21, 2002 /16 Kislev, 5763


High stakes at the High Court: Handicapping the Supremes


By Michael Kirkland


http://www.NewsAndOpinion.com | (UPI) Supreme Court watchers have been predicting for years that Chief Justice William Rehnquist will retire.

This year, they may finally be right.

If you're a calculating man or woman -- like Rehnquist, who enjoys his poker -- it's time to recognize that the court and the country are on the brink of change.

The 78-year-old Rehnquist has said he believes a justice should give the party that first nominated him -- in the chief justice's case, the Republicans --a chance to replace him.

Rehnquist now has at least a two-year window of opportunity in which he knows a Republican president will have the advantage of a Republican Senate.

Though the GOP could control Congress and the White House much longer than that, Rehnquist knows that the prevailing political winds can shift in the blink of an eye, and if he wants to give President George W. Bush the certain chance to pick his successor he'd better stick with the sure thing.

And there have been little signs, subtle as flakes of truffle in foie gras, that Rehnquist may be ready to step down.

On the first day of this term in October, Rehnquist was trying to announce the retirement of "chief deputy clerk Frank Lorson." Instead, in what may be a Freudian slip of the first water, he began to announce the "retirement of chief justice ... "

Rehnquist caught himself quickly and corrected his slip. But it makes you wonder.

Presidents, of course, nominate Supreme Court justices and the Senate confirms them.

One scenario floating around the powerful Federalist Society (dedicated to restoring conservative values to judiciary) and the halls of the Supreme Court itself was first reported some months ago by United Press International:

Rehnquist retires. Bush nominates Justice Sandra Day O'Connor to replace him, then nominates White House Counsel Al Gonzales to fill her spot as associate justice.

O'Connor serves for a couple of years, then steps down in the second Bush term. The president nominates Gonzales as chief justice and another conservative to fill out the court.

In a couple of strokes, Bush consecutively names the first woman chief justice, the first Hispanic justice and the first Hispanic chief justice, while keeping the court solidly conservative and advancing the GOP among Latino voters.

Should you bet money on this one? Since there is no Supreme Court handicapper named "Lefty" with the inside dope -- not that I know of anyway -- let's pretend I'm one.

Recommended wager: Don't bet the farm. It requires a lot of pieces falling into place. Almost too many. If you must bet on this scenario, make it what we used to call a "gentleman's bet," one that didn't involve money, just bragging rights.

The main problem is that O'Connor is a moderate conservative who has supported abortion rights. That's a mortal sin in the eyes of Bush's core constituency.

So if Rehnquist steps down, who are the rest of the "papabile"?

A few years ago a couple of obvious names would have sprung to mind: Kenneth Starr and Theodore Olson. They're two of the best appellate lawyers in the United States, giants in a clutch of lesser men.

But Starr, one of this town's true gentlemen, ran afoul of a little thing called Whitewater, and Olson, now the U.S. solicitor general, has come across as a partisan attack dog.

In fact, Olson was still making Hillary Clinton jokes at the Federalist Society gathering in Washington last week, with Justice Antonin Scalia looking inscrutable on the dais.

There are enough Democrats left in the Senate to successfully filibuster any truly unacceptable nominee, and the old guard has made too many enemies.

Who else is left?

There are a whole slew of conservatives to choose from, but put your money on the Hispanics.

The urge to nominate Gonzales or Judge Emilio Garza of the 5th U.S. Circuit Court of Appeals to whatever vacancy appears on the Supreme Court may be too strong for Bush to resist. The political advantages are enormous, and it would be hard for Democrats to wage a high-profile fight against either of them.

Recommended wager: Even money.

The whole aspect changes, however, if the vacancy is O'Connor's rather than Rehnquist's. Trying to replace her could kick off one of worst political fights of the new century.

Much has been made of the 6-3 support for 1973's Roe vs. Wade, the landmark Supreme Court decision that first recognized a woman's right to any abortion.

O'Connor and moderate Justice Anthony Kennedy are part of that 6-3 pro-Roe majority.

However, the real question is not whether Roe will survive, but whether a future Supreme Court allows bans on "partial-birth abortions."

The Supreme Court struck down such bans in 30 states in 2000's Stenberg vs. Carhart, partly because the bans could be interpreted to prohibit all abortions, not just "partial-birth abortions."

O'Connor was part of the 5-4 majority in Stenberg and Kennedy was part of the dissent.

In other words, to put all abortion rights in jeopardy, any O'Connor successor on the Supreme Court would not have to vote to reverse Roe -- a very unpopular move -- just vote with the conservatives to uphold "partial-birth abortion" bans as constitutional.

The Supreme Court will almost surely have to deal with the issue again over the next year or two. Sen. Trent Lott, R-Miss., soon to be back in the saddle as Senate majority leader, has promised to revive legislation containing the federal "partial-birth abortion" ban, whether the White House wants him to or not.

An O'Connor retirement would put the president in a tremendous bind. If Bush nominates a moderate who could support abortion rights, he alienates a substantial portion of his base. If he nominates a conservative who at the least will vote to ban "partial-birth abortions" he guarantees a savage fight with Democrats and even some of his own party.

So what are the odds of a political bloodbath in the Senate if Bush has to replace the 72-year-old O'Connor rather than Rehnquist?

Recommended wager: Bet the farm.


Michael Kirkland is UPI's senior legal affairs correspondent, and has covered the Supreme Court and other parts of the legal community since 1993. Comment by clicking here.

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