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Analysts Mull Possibility of Supreme Court Vacancy

Monday, 25 June 2007 12:00 AM

WASHINGTON -- If a U.S. Supreme Court justice steps down in the coming months, the Bush administration may have an easier time filling the seat with a conservative nominee than is generally expected, some political analysts argue.

The first full term in which Chief Justice John Roberts, Jr., and Associate Justice Samuel Alito have served together is drawing to a close, and the country is again bracing for the possibility of another justice retiring from the bench.

Retirement speculation focuses on Justices John Paul Stevens and Ruth Bader Ginsburg, both liberals. Stevens is 87 years old; and although Ginsburg is 13 years younger, her frail appearance has often prompted conjecture of poor health.

These justices have also taken to reading their dissents from the bench in recent months, a practice that Curt Levey, general counsel for the Judicial Confirmation Network, believes may signify their displeasure with being in the minority on several important cases.

Justice David Souter, 67, who was appointed by President George H. W. Bush, also is rumored to be considering retirement.

Jan Crawford Greenburg, author of the recent book, "Supreme Conflict: The Inside Struggle for Control of the United States Supreme Court," has written that the Bush administration has prepared a "short list" of possible nominees should a justice step down.

According to Greenburg, possible nominees include Janice Rogers Brown of the D.C. Circuit Court of Appeals; Priscilla Owen and Edith Brown Clement, both of the Fifth Circuit; Diane Sykes of the Seventh Circuit; Loretta Preska, a New York Federal District judge; and Raoul Cantero of the Florida State Supreme Court.

While all six are considered conservatives who would fit the president's judicial restraint criterion, Preska and Cantero are more junior than nominees over the past 20 years. All justices since Scalia's nomination in 1986 have been elevated from the Federal Court of Appeals.

Quin Hillyer, senior editor for the American Spectator and a regular contributor for the conservative blog ConfirmThem, told Cybercast News Service that he knows of "nobody who really believes there will be a new Supreme Court vacancy" at this time.

Levey agreed with Hillyer to a point. Though there are no rumors of an imminent retirement floating around Washington, he told Cybercast News Service Friday: "I'm not sure you can take that as an indication one way or the other. These upcoming vacancies are such a closely held secret, so rumors often have no correlation to the truth. When [former Justice Sandra Day] O'Connor retired, the conventional wisdom was that [former Chief Justice William] Rehnquist was to retire, not O'Connor."

The court is now evenly divided between four conservatives (Chief Justice Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito) and four liberals (Justices Stevens, Souter, Ginsburg and Stephen Breyer), with Justice Anthony Kennedy's decisions often frustrating both blocs.

Should a vacancy occur, confirmation of a replacement is widely expected to be difficult. If a conservative replaces an outgoing liberal, the court would be dominated by the right for the first time since President Franklin Roosevelt's administration.

Representatives for People for the American Way could not be reached by press time, but PFAW President Ralph Neas has expressed concern over such a scenario.

"Confirming one or more additional right-wing justices in order to entrench a far-right majority on the court for decades to come is an extremely high priority for radical right leaders," he wrote in a recent article posted on the group's website. "They are on the verge of a generations-long victory."

Neas said a conservative majority on the bench would overturn Roe v. Wade, - the controversial 1973 decision establishing a constitutional right to have an abortion - "and many other key rulings that affirm rights and freedoms that Americans take for granted."

Hillyer believes, however, that a confirmation fight could be beneficial for President Bush. While the president's approval ratings remain poor, Hillyer said Bush "would receive a significant jump in approval if he nominated a solid, impressive conservative for the Supreme Court.

"I have repeatedly argued that when the issue is judges, conservatives win - and that Republicans win when they push highly qualified conservative judges," he stated.

"Conservative judges and justices tend to reach results also popular with the political center," Hillyer argued. "This holds true on eminent domain, on partial birth abortion, on the subject of some courts' outright hostility to all religion in the public square, on race-based admissions and on a number of other issues."

Levy agreed. "If there's anything that President Bush could do increase his popularity, it would be to appoint a strong conservative," he said.

Some analysts say the outlook for confirmation in a Democratic-controlled Senate is more favorable than many may assume.

"The long-established practice is that the Senate will afford every Supreme Court nominee an up-or-down vote on the Senate floor," Ed Whelan, president of the Ethics and Public Policy Center, wrote in a June 21 article for National Review Online.

He said Supreme Court nominees, unlike those in lower courts, are referred out of the Judiciary Committee regardless of whether the committee approves them and added that "there has never been a partisan filibuster of a Supreme Court nominee."

Whelan was optimistic of a potential conservative's chances in the Senate, where the Democrats hold a slim 51-49 margin and Vice President Cheney has a potential tie-breaking vote. He said a quality nominee should win the support of all, or nearly all, 49 Republican senators.

It was also possible to identify a number of Democrats who might support a conservative nominee, Whelan said, noting that four Democrats - Sens. Robert Byrd, Kent Conrad, Tim Johnson, and Ben Nelson - had voted for Alito.

Other Democrats in "red" states - especially those like Sens. Mary Landrieu and Mark Pryor who are running for reelection in 2008 - could be "prime targets," as could newly elected "moderates" like Sens. Bob Casey and Jon Tester.

"There's simply no reason to think that a strong proponent of judicial restraint won't earn the votes to be confirmed," Whelan wrote.

Levy and Hillyer cast doubts on the possibility of a Democratic filibuster to delay or halt a possible Bush nomination.

Levy noted that while Alito was subjected to an attempted filibuster during his confirmation proceedings, the same would not likely last for long should a vacancy open up this term because "it's just too high-profile."

Noting that a filibuster is typically a tool of the minority party in the Senate, Hillyer speculated that "the Democrats...would fear [that] they would look monumentally stupid if they filibuster while in the majority."

Nonetheless, an example from recent history does provide food for thought.

Although Scalia was confirmed 98-0 by the Republican-controlled Senate in 1986, his would-be conservative colleague on the bench, Judge Robert Bork, was defeated by a vote of 42-58 less than a year later, after the Democrats regained control of the Senate in 1986 midterm elections. That seat was later filled by the moderate Kennedy.

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WASHINGTON -- If a U.S. Supreme Court justice steps down in the coming months, the Bush administration may have an easier time filling the seat with a conservative nominee than is generally expected, some political analysts argue. The first full term in which Chief...
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Monday, 25 June 2007 12:00 AM
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