Bush Could Make First US Supreme Court Appointment in a Decade



Republicans are hoping that President Bush will have the opportunity to appoint at least one Supreme Court justice during his second four-year term, which begins with his inauguration on January 20. But opposition Democrats are already preparing for a major nomination battle when a Supreme Court vacancy occurs.

It has been more than 10 years since a new justice was appointed to the nine-member Supreme Court. It is the longest period without a vacancy on the high court since a 12-year span ending in 1823.


In addition, there is concern about the health of Chief Justice William Rehnquist, who is battling thyroid cancer. The chief justice will swear in President Bush at his inauguration later this month. But legal experts question how much longer the 80-year-old Rehnquist can continue on the court.

With the strong prospect of a vacancy on the Supreme Court sometime in the next few years, if not sooner, activists on both sides of the political divide are already gearing up for what could be a contentious nomination battle in the U.S. Senate.

Republicans are urging the president to nominate a conservative jurist to the high court if there is a vacancy.

Bruce Fein, a legal scholar who served in the Justice Department during the Reagan administration, thinks the president should nominate someone compatible with two of the Supreme Court's most conservative members, Justices Antonin Scalia and Clarence Thomas.

"It is my proposition that President Bush should appoint all philosophical conservatives in the mold of [Justice Antonin] Scalia and [Justice Clarence] Thomas as he pledged in his campaign to fill all the vacancies that may arise in his second term," he said.

The president has not indicated who he might nominate should a Supreme Court vacancy occur. But some of Mr. Bush's comments following his re-election have encouraged conservatives to believe he will be bold in his selection of a Supreme Court nominee.

"You asked do I feel free? Let me put it this way," said George W. Bush. "I earned capital in the campaign, political capital, and now I intend to spend it. It is my style."

Opposition Democrats are preparing for a possible nomination battle as well. Liberal groups concerned with protecting abortion rights are already warning the president that appointing a moderate would be the best way of winning Senate confirmation.

"Is there a mandate in this country for President Bush to reshape the federal judiciary in his image? Absolutely not," said Nan Aron, who is with the Alliance for Justice, a liberal legal activist group that has opposed several of the president's nominees for federal judgeships.

She says the high court already leans conservative on most issues and that another conservative on the bench would tilt the Supreme Court too far to the right.

"So much of what we Americans take for granted in terms of a regulatory structure that basically protects us and our environment," she said. "This administration will seek to put justices on the bench that will basically overturn so much of what we have taken for granted."

Political experts say Supreme Court appointments are important because it is an area where a president can have an impact long after he or she has left office.

"Your legacy extends decades when you make Supreme Court appointments," said Allan Lichtman, a presidential historian at the American University in Washington. "And you know that the conservatives, who are the dominant force in the Republican Party, will be pressing for a very conservative nominee. The Democrats will be saying, reach out [appoint a moderate]. You cannot hide with that appointment."

Any nomination battle will be fought out in the Senate. A simple majority of the 100-member Senate is required for confirmation. But Democrats could try to defeat the nomination by use of a parliamentary tactic known as the filibuster in which a nomination is blocked by endless debate.

It takes 60 votes to end a filibuster. Republicans currently hold 55 Senate seats, compared to 44 for the Democrats and one independent.

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