The future face of American justice

If the Supreme Court justices who handed Bush the presidency retire during his term, not only will they spark a virtual civil war, they'll destroy the integrity of the high court.

Published June 13, 2003 9:36PM (EDT)

While the political industry makes its preparations for a possible Supreme Court nomination cage match, it seems constructive, in this relative calm before the storm, to ask whether there's any way the coming crisis can be avoided. Some of the most fervently partisan members of both sides would likely either deny that the damage from this fight will be so bad or argue that it is a battle that must and should be fought, whatever the damage. For those who disagree, however, and who would prefer not to further erode the legitimacy of the judicial branch, we should closely examine the circumstances surrounding a prospective Supreme Court vacancy and look for paths around the quicksand.

The likelihood of at least one vacancy this summer is, in fact, fairly high. There hasn't been a departure from the Supreme Court since Justice Harry Blackmun retired in 1994 -- the longest such span since the 1820s. According to press reports, both Chief Justice William Rehnquist and Justice Sandra Day O'Connor have apparently confided to friends that they have considered retirement; the chief justice even made what was intended to be a low-profile visit to the White House last December, which seems to have solidified expectations that he will retire shortly. Although there has been no actual announcement of anyone leaving the court, the stars are certainly aligning and most court-watchers have concluded that at least one vacancy this summer seems much more likely than not. Already, high-profile Republicans have begun fundraising for a project to support potential Supreme Court nominations.

Regardless of the qualifications and preconceptions of whomever the president would choose to fill this vacancy, the crisis threatening to erupt around a nomination will unavoidably involve two issues that grow directly out of the circumstances of the president's election. First, the way in which the court ended the Florida recount supports a facile allegation of conspiracy: five conservative Supreme Court Justices corrupted decades of federalist precedent to guarantee the inauguration of a like-minded president so that he, for his part, will turn like-minded judges into like-minded justices. Granted, allegations of this kind are typically written out in longhand over 60 or 70 densely spaced pages, but nevertheless, as the saying goes, even paranoids have enemies. It really makes no difference whether Justice Scalia ever called then-Gov. Bush on the phone to say "Listen, here's how this is going to work," because a Supreme Court nomination at this point will achieve the same outcome whether anyone conspired to obtain it or not.

The second and far more serious failing that would arise from a nomination now would be its lack of accountability within the democratic process. Supreme Court justices are not elected, but instead are appointed for life; that is supposed to insulate them from politics and political pressures. But if one or two justices were to retire now, they would have inordinate power to shape the court -- and the course of the nation -- for generations ahead. The process of making these replacements is, or at least always has been, a one-way street. In every other presidency in our nation's history, the sitting members of the Supreme Court have had no greater say over who would choose their potential replacements than did any other voter -- clearly, that would not be true at this time for this court and this president.

To be absolutely clear, my point is not that President Bush can't make a Supreme Court nomination in this term. It's that he shouldn't have to, or failing that, that he just shouldn't. President Bush holds his office in spite of the democratically expressed will of the national electorate, not because of it. It is not a repudiation of his legitimacy as president to observe that simple point of fact. Whether or not you consider the Electoral College to be a pointless anachronism, in the 2000 presidential election it indisputably led to an undemocratic result: The holder of the nation's highest office is not the person who got the most votes.

In this way, President Bush may have been lucky that he could not claim a wider victory in Florida's balloting, since the maniacal recount process that followed overshadowed any in-depth consideration of the legitimacy of his mandate in light of his popular vote defeat. The initial fascination with the recount and the high-profile way in which Bush vs. Gore was seen, by many, to put a merciful end to the entirety of what had become, for a great many, kind of a pain in the ass was thus especially happy news for the Bush administration, since prior to the election his campaign had been openly considering an advertising blitz and street protests had he lost the presidency despite winning the popular vote.

Taking the Republicans at their pre-election word, then, that they likewise consider this result to be undemocratic, it would seem you need to reach one of two conclusions: Either democracy doesn't matter (or at least, it shouldn't stand in the way of putting conservative justices on the Supreme Court), or it is worse to choose the leaders of two branches of government in spite of the democratic mandate of the nation than it is to choose the leader of one. In short, a Bush appointment to the Supreme Court would not be unconstitutional, but it would be fundamentally undemocratic, which -- and I suspect the pre-election Republicans would agree -- is even worse.

So what's to be done about it?

Obvious Solution No. 1: Don't Retire

If the actions of the Supreme Court in Bush vs. Gore lifted the veil on the politicization of the federal judiciary, a decision by any of the "Bush 5" to retire for anything less than a genuine emergency would threaten to rip it off. Only the truly deluded could sincerely believe that the court would have decided the same issues of law in the same way had the parties in that case been reversed. That is a pretty damning observation, but it need not be left unanswered in the legacy of this decision. Were there to be no vacancy in this presidential term, the mutual back-scratching aspects of this allegation would be left unfulfilled, and the debate over the potential opportunity for the court's conservative majority to perpetuate itself outside the popular sovereignty of the nation would be academic.

But in the event of a vacancy, that allegation of corruption comes full circle. So stick it out - the next election is only 18 months away, and (knock wood) as long as its results are anything less razor-close than the last one, the next vacancy on the court can be filled without all these complications. The justice who decides to retire anyway will fuel the worst allegations leveled at Bush vs. Gore: that it is a decision, alone among Supreme Court precedent, that was decided not just by the general ideology of the individual justices but also by their political self-interest in determining the selection of their own replacements.

Should a justice retire without demonstrating a truly compelling set of personal or health-related circumstances, the political war to follow will be made that much worse. To borrow a recent turn of phrase, it will be a war of choice, and not of necessity -- one in which the political attack dogs of both sides will be turned loose if and only if a particular justice decides to let them slip. To whatever extent the justices have gotten a pass for the way they voted in Bush vs. Gore, there can be no mistaking the responsibility for the political wounds that would be opened by a Supreme Court nomination. A decision to retire at this point would start the chain of causation leading to profound acrimony and political damage; a decision to stick it out would leave this Pandora's box unopened.

Obvious Solution No. 2: Don't Fill the Vacancy

Again, the election is only 18 months away -- that's really just one Supreme Court term, assuming that any retiring justice stays on the court until the end of the spring calendar. Should a justice retire this summer despite the controversy into which that decision would throw the government, President Bush could just let the court operate for a single term with only eight members. The outcome of this would neither be unprecedented nor particularly debilitating to the effective administration of justice.

"Better the bench shall be vacant for a year than filled for half a century by ... partisans committed in advance to particular beliefs." An editorialist for the National Intelligencer wrote that in 1845, after President John Tyler had spent over a year trying (and failing -- five times) to get the U.S. Senate to confirm one of his nominees to the court. At the state level, as recently as 1966, the South Carolina Supreme Court operated with a vacancy for an entire year. Even in the ordinary course of events, judges (and justices) commonly recuse themselves from particular cases on which they could have an actual or perceived conflict of interest. Courts have experience operating with vacancies and this extraordinary time should call for an extraordinary measure.

Moreover, this make-do-with-eight approach would not necessarily have such an extraordinary impact. With one vacancy on the nine-member court, the only cases whose outcomes would be directly affected would be those that would otherwise be decided 5-4. The vast majority of cases that would otherwise be decided by a larger margin would instead turn out to seem superficially closer (i.e., decided 5-3 instead of 6-3, and so on), but the outcome of those cases for those litigants would be identical. In the 4-4 cases that would remain, the lower court's decision would stand and the Supreme Court's resolution would create no precedent, an entirely predictable result that occurs from time to time even now during ordinary recusals. Furthermore, these narrowly decided cases are both a very small minority of the court's caseload, and, by self-definition, the cases on which the judicial branch of the national government is most closely divided. These are the cases with respect to which the accountability of the justices, ensured by the process through which they are installed on the court, is most important.

The hypothetical retirement of both Chief Justice Rehnquist and Justice O'Connor essentially just doubles the stakes - making two nominations under these circumstances does much more damage to the authority of the court as an institution than making just one. The existence of two vacancies would change the outcomes of the most closely decided cases, giving effective control of the court back to the moderates. If that outcome seems less fair than the freezing of the status quo that would result from only one vacancy, the fault for that (or the credit, depending on your perspective) nevertheless should lie with the justices who choose to retire.

It is not an answer to suggest that Bush could both accommodate these concerns about accountability and act to maintain the status quo by making only one appointment. The basic problem with any appointment to the Supreme Court in this term is that it completes the circularity of the conspiracy allegation against the Bush 5. Making only one appointment might do less damage than making two appointments, but the point is that the president and the justices should be principally concerned with reinforcing the court's legitimacy, not with pursuing horse trades aimed at taking what they can get.

Taking the path of leaving any vacancy open would not only spare the country from what promises to be an historically acrimonious confirmation process -- it would unite instead of divide. The importance of protecting the integrity and the moral authority of both the new justice and the entire Supreme Court is something on which everyone should be able to agree. Based on the vote counts in the 2000 election, the need for more conservative Supreme Court justices is something with which a net of half a million voters would evidently not agree. The best option for a president who truly means to unite and not divide is unmistakable.

So why is this train wreck going to happen anyway?

Two reasons:

One: The partisan compulsion to use political power to acquire more political power, especially the power attainable through a lifetime appointment in the face of a lingering 50/50 logjam, is simply irresistible.

Precisely because the nation remains so evenly divided in partisan and ideological terms -- and because most of the dominant demographic trends tend to augur well for progressives -- conservatives will leap at the chance to renew their lock on the Supreme Court for another few decades. A party or governing bloc needs the consent of the governed to acquire more power in Congress or in state governments; it takes just a stroke of the president's pen and the consent of the Senate to tip the scales of power at the Supreme Court. For the most political administration in American history, this is a no-brainer.

Once upon a time, using the political power of one's office to gather more power resulted in literally dozens of congressional investigations of the Clinton administration including, and I'm almost positive I didn't just make this up, a taxpayer-funded investigation into the White House Christmas card list. During the Bush administration, the use of Vice President Dick Cheney's official residence at the Naval Observatory for a Republican Party fundraiser, private briefings for top Republican donors by Bush Cabinet officials, and the simply astonishing use of the federal police authority of the Department of Homeland Security to intervene on behalf of the Texas Republicans in Tom DeLay's shameless mid-decade redistricting power grab, have thus far resulted in a couple of watery editorials. So don't expect much of an apology about the naked use of power to beget power from this administration.

Two: For the same reason Protestants still march through Catholic neighborhoods in Ireland: They will because they can, and because to do otherwise would acknowledge that the other side has a point.

Make no mistake about it, should this president have the chance to make a Supreme Court nomination in this term, top officials in his administration will not only tolerate the fight that ensues, they will delight in it. Part of this may reflect a basic difference in philosophy. If you accept the broad generalization that progressives see every public issue only through nuance and complexity and that conservatives distill everything into binary "right" or "wrong," Bush will see no alternative but to make as conservative a nomination as he can find, and to do so loudly and proudly.

In this view of the world, Bush's inauguration as president was unquestionably "right" -- no less an authority than the Supreme Court of the United States of America said so itself. And not just right, some suggest, but perhaps even divinely ordained. Against that kind of moral certitude, what difference should it make that more people voted for Gore? It will make no difference at all unless President Bush takes this opportunity to value democracy more than power.

The bottom line: There is a clear opportunity ahead to sidestep what otherwise promises to be a truly poisonous nomination fight. The first and by far the easiest is for all nine sitting justices simply to stick it out for another 18 months. No one denies that justices commonly stay on the court longer than they might otherwise to await election results they find personally amenable; this time, they could stay on the court to avert an otherwise needless and uniquely aggravated round of political bloodletting and to avoid deepening the rift opened by Bush vs. Gore.

Justice John Paul Stevens' dissent in that case famously lamented the effect that decision would have on the institution of the independent judiciary. "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear," Stevens wrote. "It is the Nation's confidence in the judge as an impartial guardian of the rule of law." Deciding to postpone retirement at this point, in spite of its obvious personal and political expedience, would provide a powerful counterexample.

The burden of this moment falls solely on each individual justice. From the perspective of simple politics, if a vacancy occurs Bush may have no practical choice but to coolly ignore these controversies and appoint exactly the kind of aggressive, movement conservative he would have appointed if he'd been elected in a landslide. In turn, Democrats will have no alternative but to fight that nomination like their political lives are at stake -- because in many ways, they are.

In other words, once a justice steps down, there will be nothing to stop the snowball of rhetoric and political attacks to follow. Senate Republicans themselves describe one of their strategies as the "nuclear option," a revolutionary change some of them are willing to make in the rules governing the Senate's role in judicial nominations. All that stands in the way of a bilateral exchange of political nukes are the same five justices who ended the Florida recount. Regardless of how one views the propriety of the decisions they made in Bush vs. Gore, the justices themselves can make a huge contribution towards resolving the lingering damage of that controversy if they take the high road now, and avoid turning the deeply divisive legacy of that case into one that would continue to threaten the authority and integrity of the Supreme Court long into the future.

By Joseph M. Birkenstock

Joseph M. Birkenstock is formerly chief counsel of the Democratic National Committee and currently with the political law group of Smith Kaufman LLPC in Los Angeles. The opinions expressed here are solely his own.

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