Commentary

The Coming Battle for the Court

By James L. Swanson
This article was published in the Washington Times, April 27, 2003.

At the Supreme Court of the United States, October Term 2002 is drawing to a close. The justices hear their last oral arguments on April 30, and in late June they will take to the bench for the last time to announce their final opinions of the term. Court watchers await decisions in several important cases, including free speech and affirmative action, which may not come down until the last day of the term. But that is not the only reason why court watchers have circled the last week in June on the calendar. That is when odds makers are betting on the retirement of at least one member of the Court.

For months pundits have speculated that Chief Justice Rehnquist, Justice O’Connor, or Justice Stevens will step down this year. Why?

  • Because justices traditionally retire under the political party that appointed them, and this is the last chance for these three Republican appointees to retire during President Bush’s first term with the assurance that he can fill a vacancy before the 2004 election.
  • Because, in the case of the Chief Justice, he has, in three decades of service, gone from lone dissenter to leader of the Court’s return to the first principles of limited government and federalism, and will go down as one of the most important Chief Justices in history.
  • Because, in the case of Justice O’Connor, the press spread rumors that she wanted to retire.
  • Because, in the case of Justice Stevens, he is 83 years old.

It is impossible to know whether these or any other members of the Supreme Court are planning to retire this year. Many self-styled experts have embarrassed themselves by attempting to predict a justice’s vote in a single case, let alone a retirement from the bench. Nor is this to suggest that any of the nine justices should retire. The performance of the oldest justice (John Paul Stevens) to the youngest (Clarence Thomas), of the longest serving (William H. Rehnquist) to the briefest (Stephen Breyer) reveals that all remain able and engaged. Their written opinions confirm that none has suffered an intellectual decline. One may disagree with their views, but not their competence to serve. If a retirement comes, it will occur because the justice wants to step down, not because he or she has to.

It might not happen until the end of June. But it could also happen tomorrow. Justices Potter Stewart, Warren E. Burger, and Thurgood Marshall waited until the end of their final terms and made June announcements. But Byron White and Harry Blackmun announced their retirements early, on March 3, 1993 and April 6, 1994, respectively, to give President Clinton ample time to nominate their successors, Ruth Bader Ginsburg and Stephen Breyer, and to win Senate confirmation by, in both cases, the beginning of August.

Although it is impossible to know if or when a vacancy will occur, one thing is easy to predict: how Democrats will respond to President Bush’s first nomination of a Supreme Court justice. Senate Democrats, in combination with a cabal of special interest groups, intend to politicize the Supreme Court and oppose any Bush nominee, regardless of who the nominee is. History, both recent and reaching back to the Reagan and Bush 41 presidencies, offers little encouragement that the Senate will conduct itself professionally and responsibly.

The pattern emerged over time: the Democrats’ defeat of Judge Robert H. Bork’s nomination to the court in 1987; their near-killing of Judge Clarence Thomas’ nomination in 1991; their rage against the Supreme Court for “handing” the presidency to the Republicans in the 2000 election; the notorious Washington Post op-ed by Abner Mikva (former Clinton White House counsel and retired U.S. Court of Appeals judge) calling on the Senate to block any Supreme Court nominations by George Bush; their bottling up superbly qualified appellate court nominees for nearly two years on the Democrat controlled Senate Judiciary Committee; their obsession with Roe v. Wade and their imposition of ideological litmus tests; their celebration of the American Bar Association seal of approval as the “gold standard” — until the ABA began giving many of President Bush’s nominees the highest possible rating; their filibustering of the nomination of Miguel Estrada to the U.S. Court of Appeals in Washington, D.C. to prevent an up or down vote even after a majority of senators announced that they will vote to confirm him; their threatened filibuster against Texas Supreme Court justice Priscilla Owen for a seat on the U.S. Court of Appeals for the 5th Circuit.

That history, and more, exposes what Democrats will do to fight a Bush Supreme Court nomination. The attack will be waged on two fronts, one substantive, and the other procedural.

The substantive attack will have six parts.

  • Retirement Day Blitzkrieg — If the retiring justice is a Republican, and gives the White House advance, confidential notice of his or her intention to retire, as Chief Justice Warren Burger did in 1986, the president will have an opportunity to announce a retirement and a nomination on the same day. Within one hour of that nomination, a leading Democratic senator, probably Daschle, Kennedy, Leahy, or Schumer, will attack the nominee’s character, integrity, or competence. (Recall Senator Kennedy’s outburst within 45 minutes of President Reagan’s nomination of Judge Bork: “Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue policemen could break down citizen’s doors in midnight raids, school children could not be taught about evolution, writers and artists could be censured at the whim of government.”) Sundry left wing “public interest” (actually, special interest) groups will join the chorus. The purpose of the first day blitzkrieg is to set the president and the nominee reeling on their heels and destroy the momentum of the nomination. The blitzkrieg aims to spin that night’s TV coverage, and the next morning’s newspaper stories.
  • The Paper Blizzard — Within hours of the nomination, senators and special interest groups will inundate the press with letters, reports, memos and even small books that purport to expose the unfitness of the nominee. In many cases those scripts have already been written. For more than two years, Democrats have been doing “opposition research” as though preparing for a political campaign, to uncover damaging information on the 10 to 15 people rumored to be on the president’s “short list” for the Court. The purpose of the paper blizzard is to turn public opinion against the nominee long before the Senate Judiciary Committee even convenes a hearing on the nomination.
  • The Indictment — The paper blizzard will include some or all of the following accusations: The nominee is not “sensitive” to the rights of women, children, African-Americans and other racial minorities, the disabled, workers, unions, farmers, native Americans and others. The nominee is “out of the mainstream” of the American legal tradition; is too “right wing”; is even “radical.” (Democrats perfected their use of those smear tactics against Judge Robert Bork, stooping so low as to suggest he might not believe in God. Apparently a godless conservative is even more dangerous than a god-fearing one.) With much hand-wringing, Democrats will cry crocodile tears, sighing “if only the president had nominated a moderate conservative, we would be delighted to confirm him or her.” If the nominee does not have an extensive body of scholarly writings, Democrats will tar him as a “stealth” candidate who possesses hidden and alarming views. If, on the other hand, the nominee has written extensively, those writings will be denounced as “out of the mainstream.” (Remember that phrase). If the nominee believes in a color blind society and equal treatment under the laws, and questions the constitutionality of race-conscious policies — called “affirmative action” by some — then of course the nominee is a “racist” who will want to “turn back the clock” on civil rights, overturn Brown v. Board of Education, repeal the 13th, 14th and 15th Amendments, and reintroduce slavery.

    Beyond attacking the nominee personally, the paper blizzard will suggest that he or she represents a so-called “transformative” appointment who will upset the alleged delicate “balance” of the court. Some Democrats will seek cover by claiming that they have nothing against the nominee, he or she is just the wrong person at the wrong time for the best interests of the Court and the country.

  • Rancorous Hearings — President Bush’s first nominee to the Court should not expect a cordial reception from Democrats on the Judiciary Committee. They will attempt to grill the nominee for 3 to 6 days. They will ask hundreds of questions. Many hostile witnesses will be called. Special interest groups will haunt the hearing room and loiter in the halls, murmuring against the nominee and handing out attack literature.
  • The Partisan Committee Vote — For the Democrats, the hearings are mainly for show and to posture before the cameras for their constituencies and the left-wing special interest groups. They will have already decided their vote before the hearing begins or the nominee speaks one word. Of course that vote is “no.” Because Republicans are a majority on the committee, the nomination will be reported to the Senate favorably by a party line vote.
  • The Senate Vote — Once the Judiciary Committee reports the nomination to the full Senate, Democrats opposing the nomination will continue to fight it on the floor by insisting on a lengthy debate. Then they will try to persuade their colleagues to vote against the nominee. Ultimately they will lose. The President’s nominee will be confirmed because the Republican majority, plus a number of responsible Democrats, will vote to confirm him. If there is a vote, that is.

Along with their substantive attack on the nominee, Democrats will mount a procedural attack. That plan has two elements.

  • Delay the Judiciary Committee Hearing — Upon making a nomination, the president will ask Judiciary Committee Chairman Orrin Hatch to schedule hearings by early July with the goal of having a Senate floor vote by late July or early August. Democrats on the committee will vigorously oppose that goal and attempt to delay the hearing until September. They will bleat that there must be no “rush to judgment,” and claim that they require months to “study” the nominee. Their ability to stall Judge Bork’s hearings until September contributed to the nomination’s defeat. Democrats and the special interest groups had all summer to mobilize their onslaught against Judge Bork. The White House failed to anticipate the viciousness of the assault and was taken off guard. Because the Republicans now control the committee, the Democrats will find it harder to stall the hearings.
  • The Filibuster Trump Card — When all else fails to cow the president’s nominee into withdrawing, when the Democrats have been unable to stall the Judiciary Committee hearing, when they can’t stop the committee from reporting the nomination favorably to the full Senate, after they fail to turn mainstream America against the nominee, when they count heads and discover that a majority of senators, including many Democrats, intend to vote to confirm the president’s nominee, look for the leaders of the opposition to play their favorite, anti-democratic, Democratic trump card — the filibuster. Democrats challenged the president on Miguel Estrada, and they believe they have found the president wanting. Although President Bush has called Estrada one of his most important appellate nominees, the White House has, for the past two years, been unable to confirm him. The Democrats’ successful filibuster against Miguel Estrada, the first ever against a nominee to a U.S. Court of Appeals, has emboldened them to challenge President Bush when he makes his first nomination to the High Court. The Democrats have paid no price for their Estrada filibuster. Look for them to test the president again.

Yes, that is the worst-case scenario, and it may not unfold. In any event, if there is a vacancy on the Court, the nominee must be treated civilly, fairly, and allowed an up or down vote by the full Senate, as the Constitution contemplates. The president had better be prepared for a fight. His opponents are certainly ready. If the president prevents the politicization of nominations to the lower federal courts, and to the U.S. Supreme Court, he will win the most important domestic battle of his first term. If he loses that battle, he may not get a second chance.

James L. Swanson, editor in chief of the Cato Institute’s “Supreme Court Review,” was on the Department of Justice Office of Legal Counsel team that staffed the nomination and confirmation hearings of Judge Robert H. Bork for the Supreme Court.