The next war: Bush and the Supreme Court

With William Rehnquist and Sandra Day O'Connor considering retirement, activists on all sides are preparing for a firefight over Bush's next high-court nominee.

By Tim Grieve
June 28, 2003 12:45AM (UTC)
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Jane Doe was 17 and pregnant. She wanted an abortion, but she knew that her antiabortion parents wouldn't approve. So she did what the law in Texas said she could do: She asked the courts to let her end her pregnancy without telling her parents first.

Jane Doe won her case. In June 2000, the Texas Supreme Court held that she had the right to an abortion without parental notification or consent. At the time, the decision was seen as at least a minor battlefield victory in the war for abortion rights. But now, three years later, it appears that the win may have come at a substantial cost. If the religious right has its way, "In re Jane Doe" will prevent George W. Bush from nominating to the U.S. Supreme Court the man who might -- might -- save legalized abortion in America: former Texas Supreme Court Justice and current White House Counsel Albert Gonzales.


The landmark Roe vs. Wade abortion ruling was unexpectedly on center stage Thursday as the U.S. Supreme Court issued its decision in another Texas case -- this one reversing a state law that outlawed private gay sexual acts between consenting adults. The majority relied on the 1973 abortion ruling in holding that gay sex falls within a protected zone of human liberty; in a scathing, mocking dissent, Justice Antonin Scalia argued that Roe vs. Wade was a mistake that should be overturned.

In the coming days, advocates and pundits will rail and rage over the court's decision in the gay sex case and its implications for the future of Roe vs. Wade. But the more direct and immediate threat to abortion rights will be in decisions not yet made, or not yet announced: the possible retirement plans of two current Supreme Court justices, and whether President Bush will nominate Gonzales to replace one of those justices.

With the end of the Supreme Court's 2002-2003 term Thursday, the retirement watch officially begins. Chief Justice William Rehnquist is 78 and in up-and-down health. Associate Justice Sandra Day O'Connor is 73 and apparently anxious to return home to Arizona. Rehnquist and O'Connor are both Republicans. If they want to let a Republican president name their replacements -- and if they want to avoid the specter of a Supreme Court confirmation fight in the middle of an election year -- they must either step down now or hang on and hope for the best until the summer of 2005.


It is possible that both of them will decide to wait, but most court observers expect at least one of the two -- Rehnquist, probably -- to retire.

"I suppose it's possible that Chief Justice Rehnquist will surprise us and decide that [the political climate] is just too contentious at this point, and that if Bush is reelected by a landslide in 2004 then the American people will have spoken and he can step down and Bush can get his hard-right people on the court," said Sheldon Goldman, a University of Massachusetts political science professor who studies judicial nominations. "But on the other side of the coin, Rehnquist might feel that he really does want to step down. He's had some health problems; he's getting on in years; he wants to enjoy the grandchildren or whatever, and he knows that it would be an impossibility to step down during a presidential election year."

The time may be right for the chief justice, and it may be even better for the president. "If I were George W. Bush, I'd be looking for it to happen this summer," said Nan Aron, president of the Alliance for Justice, a left-leaning public policy group that is closely tracking Bush's judicial nominations. "He's popular. He's just off of having waged a successful war. He's feeling his oats. And it's not an election year."


That's the good news for Bush. The bad news is that he may not be able to produce a nominee to replace Rehnquist -- or O'Connor - who will satisfy his right-wing base and still make it through the Senate. Hard-line conservatives have been enraged by this week's Supreme Court decisions that rejected a Texas law against sodomy and that for the first time firmly upheld the principle of affirmative action; Bush will certainly feel intense pressure from that quarter to nominate someone inclined to reverse those decisions along with Roe vs. Wade. Liberals and progressives, meanwhile, have effectively focused their energy and resources to block extremist appellate court nominees like Miguel Estrada, Priscilla Owen and William Pryor. And they've signaled that they're prepared to mount a powerful campaign if Bush nominates a hard-line conservative to the nation's high court.

Advocates on both ends of the political spectrum -- and, for the moment at least, everyday Americans -- are paying close attention to the judicial branch. If Rehnquist or O'Connor steps down in the days ahead, and if Bush can't find a Supreme Court nominee who will appease both the left and the right, this summer may bring a searing confirmation battle that touches every raw nerve in the body politic.


If either Rehnquist or O'Connor retires now, the odds-on favorite as a replacement will be White House counsel Alberto Gonzales. For the president, Gonzales is the complete package. At 47, he is young enough to stay on the court for decades. As a Hispanic, he represents a part of the ethnic geography where Republicans would like to make inroads. And as a relatively quiet conservative, he is someone the Democrats will have a hard time "branding as hardcore, right-wing ideologue," says David Yalof, a University of Connecticut political science professor who studies judicial nominations.

That distinguishes Gonzales from the hard-swinging right-wingers thought to populate the rest of Bush's short list. If Bush carries through with his campaign promise to nominate justices in the Scalia-Thomas mold -- say, federal appellate Judge Michael Luttig -- Senate Democrats could filibuster the nomination through the 2004 presidential election. But if Bush sends up the ostensibly more moderate Gonzales, Democrats may be willing to confirm his nomination, if only as the lesser of a lot of other evils.

There is a catch, however, and the Texas courts called her Jane Doe.


There are nine justices on the Texas Supreme Court. When Jane Doe's case reached the court in 2000, all nine of those justices were Republicans. One was Priscilla Owen, the staunch conservative whose nomination to the U.S. Court of Appeals Senate Democrats are currently filibustering. Another was Alberto Gonzales.

"In re Jane Doe" required Owen, Gonzales and their colleagues to interpret the Texas Legislature's Parental Notification Act. Like similar laws in a number of other states, the Texas act prohibits a young woman under 18 from obtaining an abortion without first notifying her parents unless she can establish in court that she is mature and "sufficiently well informed" to make the decision to abort on her own; that notifying a parent would not be in her best interest; or that notifying a parent might lead to physical, sexual or emotional abuse.

The girl known as Jane Doe claimed to meet the first of these tests -- that is, she argued that she was mature and "sufficiently well informed" to make a decision to end her pregnancy without first telling her parents. Six of the nine justices agreed. Alberto Gonzales was one of them; Priscilla Owen was not.


Gonzales joined the majority's opinion and also wrote separately to stress that he was simply applying the law the Texas Legislature had created. The law allowed for minors to seek abortions without parental consent through a procedure called a "judicial bypass," and Gonzales said the court could not arbitrarily declare otherwise. "To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that are not to be found in the words of the statute, would be an unconscionable act of judicial activism," he wrote. Gonzales made it clear that he was personally unhappy that Jane Doe would be having an abortion without parental consent -- he said he found it "personally troubling to me as a parent" -- but he said he was bound to apply the law "without imposing my moral view on the decisions of the Legislature."

Priscilla Owen apparently felt no such constraints. In her dissent, Owen launched an ad hominem attack on Jane Doe, suggesting that she simply wished to extract car payments, college tuition and living expenses out of them before springing the news about her abortion. Owen then set about adding additional antiabortion hurdles to ones she had attempted to erect in earlier opinions on the Parental Notification Act. Owen had previously argued that a girl should be denied an abortion unless she could prove to the courts that she could understand all the objections one might have to abortion -- including those based on religious belief. This time around, Owen said the girl would also have to prove that she had a detailed understanding of adoption procedures and that she had sought advice about abortion from "a source who was inclined to thoroughly explore with her the adverse emotional and psychological impact that an abortion may have."

Owen's opinion has made her a hero for the hard right -- so much so that Bush has now nominated her twice for the U.S. Court of Appeals and continues to fight for her confirmation in the face of the Democrats' filibuster. But where Owens has won political support for dissenting from her Republican colleagues, Gonzales may soon find that joining with the Texas court's majority -- and exercising the judicial restraint so often trumpeted by the GOP -- has blocked the way for his own future on the bench. Seizing exclusively on his opinion in the Jane Doe case, antiabortion activists have declared unequivocally that Gonzales is "pro-choice" and therefore unacceptable. In the process, what Gonzales actually wrote in the case has been distorted beyond recognition; antiabortion advocates have taken to calling Gonzales "pro-choice," and one commentator even went so far as to claim that, in the Jane Doe case, Gonzales had "voted to strike down a mere parental-notification bill."

Aside from "In re Jane Doe," Gonzales was a reliable conservative vote on the Texas Supreme Court, often siding with corporate defendants and advocating a narrow view of the powers of government. As White House counsel, Gonzales has shown his Bush-Cheney bona fides on any number of matters -- by helping select right-wing judicial nominees, by backing the administration's intrusive anti-terror policies, and by supporting at every turn the president's and vice president's penchants for secrecy in government.


Liberal interest groups are concerned about Gonzales, especially over his role in the war on terror and the judicial selection process, but their criticism of him is noticeably more muted than the harsh words they have to say about many other candidates believed to be on Bush's short list. Aron complains that much of what Gonzales has "done, initiated or promoted has been to tilt the law in this country in a rightward fashion," but she acknowledges that "there are those who consider him the moderate candidate."

Elliot Mincberg, legal director for People for the American Way, predicts immediate and intense opposition if Bush nominates a hard-righter like Luttig -- a friend and supporter of Clarence Thomas who, like Thomas, was named to the federal appellate court at an age when most lawyers are just coming into their own -- but a more slow-simmering reaction if Gonzales gets the bid. Mincberg said Gonzales' record "raises troubling questions in a whole range of areas," but he added that People for the American Way has not "looked at his record thoroughly enough" to form a complete opinion about him. "With someone like Gonzales, who does not have a record in so many areas, hearings would be very important."

For Democrats awaiting a nominee from the Bush administration, an unknown quantity may be the best they can expect. When the choice is a proven hard-right jurist or a pig in a poke, the pig begins to look pretty attractive. But that same uncertainty is unacceptable to the activists on the right. For many of them, winning the presidency was merely a step along the way to the real prize: control of the Supreme Court, and the decisive vote to overturn Roe vs. Wade. Thus, while Bush presumably won't appoint Gonzales unless he has been assured that his pick won't come back to haunt him, activists on the right may not be willing to take any chances. They remember the last time a Republican appointed a "trust me" candidate. The President was George Herbert Walker Bush and the nominee was David Souter, who has turned out to be one of the more liberal members of the court. Stop in on a Republican-right Web site this month, and you're likely to see the words: "Gonzales is Spanish for Souter."

So what will Bush do? It probably depends on who retires.


The stakes are high whenever a Supreme Court justice retires and a president nominates a replacement. That said, some nominations are more important than others. When a president replaces a retiring justice with a like-minded nominee, he merely maintains the status quo. But when the Supreme Court is closely divided -- as it is now -- and a justice who leans one way may be replaced by a president who leans the other, the changing of the guard can result in a dramatic change in the country.

By that standard, the retirement of Sandra Day O'Connor is much more important -- at least for progressives -- than that of William Rehnquist. Richard Nixon named Rehnquist to the court in 1971, and Ronald Reagan elevated him to chief justice in 1986. While Rehnquist seldom engages in the verbal fireworks of an Antonin Scalia -- and has not been a lightning rod for liberal complaint like Clarence Thomas -- his votes and opinions over the years have been unrelentingly conservative.

He voted with the 5-4 majority in Bush vs. Gore, he has repeatedly voted to uphold the death penalty and to limit the power of the federal government, and in 1973 he was one of only two justices to dissent in Roe vs. Wade. On Thursday, Rehnquist joined in Scalia's dissent in the Texas sodomy case. In that dissent, Scalia sharply attacked Roe, mocking the 1992 decision that affirmed Roe and arguing that the rationale that the majority used Thursday to uphold the right to engage in gay sex also should lead the court to revisit -- and presumably reverse -- Roe.

For Republicans, Sandra Day O'Connor has been a much more vexing justice. Although she was nominated in 1981 by conservative icon Ronald Reagan, O'Connor has been an unreliable vote on some of the issues that matter most to Republicans. Over the course of the last decade, O'Connor has been the swing vote on social issues such as race and abortion, frequently -- but not always -- siding with Justices Stevens, Breyer, Ginsburg and Souter to create a 5-4 majority over Rehnquist, Kennedy, Scalia and Thomas. Just this week, O'Connor's swing vote determined the outcome in a California criminal case, a Georgia voting-rights case and the Michigan affirmative action case.


"Replacing Rehnquist with another like-minded conservative changes nothing," said the University of Connecticut's Yalof. "But replacing O'Connor with a more consistent conservative changes everything. That is the kind of calculus that is very much in the minds of Senate Democrats."

Of course, the calculus shifts depending on who resigns and when. If only Rehnquist steps down this summer, Bush could nominate a hard-line conservative in his place but throw a bone to Democrats by elevating O'Connor to the Chief Justice position at the same time. It would be a low-cost, largely symbolic move for the White House. Having O'Connor as chief justice rather than associate justice wouldn't change any Supreme Court vote counts, and her tenure in the position would likely be short in any event. But by elevating her, Bush could deflect much of the criticism that would come with the hard-right nominee by trumpeting the fact that he had named the first female chief justice -- and a relatively moderate one at that.

But if only O'Connor steps down this summer, even this sort of symbolic compromise may prove impossible. For both Republicans and Democrats, O'Connor's seat is the prize. Republicans desperately want it, and Democrats can't give it up.

"Democrats see Sandra Day O'Connor as a vote for Roe vs. Wade," Goldman explained. "They will pull out all the stops to prevent an anti-Roe person from replacing her. And they might be able to energize the vast middle that doesn't want to see the possibility of the option of a woman being able to have an abortion taken away."

If Bush concludes that he can't offend his base with Gonzales and that he can't get any of the other shortlist hard-liners confirmed to replace O'Connor, he may look to jam the Democrats with a choice they find harder to refuse. He could do that with race, naming -- as his father did -- a conservative African-American such as Deputy Attorney General Larry Thompson or California Supreme Court Justice Janice Brown. Or he could do it with personal politics, naming Utah Republican Sen. Orrin Hatch. Hatch might be as hardcore a nominee as any Bush could send up, but his status as one of the Senate's own would likely lead to his confirmation.

"I think Orrin would be approved by the Senate," said retired Democratic Sen. Paul Simon, who helped lead the charge against Clarence Thomas' nomination and has since written a book on the judicial selection process. "The Senate club feature has diminished over the years, but it is still a factor, and it really does carry some weight."

Simon and a handful of other Democrats met with President Bush the day after he was inaugurated. Bush wanted to know how to reach out to Democrats; Simon said he advised Bush to work cooperatively on judicial appointees, particularly on appointments to the Supreme Court. Bush took some notes and said, "Interesting," Simon said.

While Bush may have taken notes, he clearly hasn't taken the advice. "Just about everybody would have hoped for a more consensual process," said an aide to one Democratic member of the Senate Judiciary Committee. While it's possible Bush will work more closely with Democrats on a Supreme Court nominee than he has with lower-court candidates, Democrats in the Senate aren't counting on it. "There will be a desire to uphold the president's nomination," the aide said, but not "if the president is provocative and divisive in who he selects."

And given Bush's track record to date -- with Owen, with Miguel Estrada, with William Pryor and others -- there is considerable reason to believe that any Bush nominee to the Supreme Court will fit that bill.

"There's no question that Bush might have some interest in tacking a bit more moderately as people approach the 2004 elections," said Mincberg of People for the American Way. "But judicial selection is an issue where, at least so far, Bush has shown that his philosophy is 'dance with the one who brung ya.' He has stuck with the philosophy of looking at judges who are like Scalia and Thomas."

That history would suggest that Bush will choose someone like Judge Emilio Garza of the 5th Circuit Court of Appeals or either Luttig or J. Harvie Wilkinson III from the conservative 4th Circuit. Luttig and Wilkinson are friends and rivals, parrying back and forth in intellectual exchanges from the right end -- at least figuratively speaking -- of the 4th Circuit bench. Luttig can be heavy-handed with both his colleagues and the law; he hounds his fellow judges when he doesn't think their opinions measure up to his own exacting standards. Wilkinson goes for a lighter touch, even if he is, by some measures, even more conservative than Luttig is. In the cynical world where nominees' personal histories become selling points, Luttig has something to offer: His father was murdered, and Luttig moved his chambers from Alexandria, Va., to Texas for the duration of the killer's trial.

But if the Senate Democrats hold firm -- and so far, they have shown that they can -- Bush may not be able to get any of these shortlisters confirmed, at least not as a one-for-one replacement for O'Connor. But if both Rehnquist and O'Connor step down this summer, Bush will have two seats to fill and more room to maneuver. Bush could appoint a proven conservative to Rehnquist's seat and Gonzales to O'Connor's. "The strategy is to go for a home run with one and try to be more politically moderate with the other," Yalof explained, citing the precedent Richard Nixon established in 1971 when he appointed the conservative Rehnquist together with Lewis Powell, who was at least nominally a Democrat. Rehnquist was confirmed 68-26, Powell, 89-1.

While no one expects Bush to appoint a Democrat, nominal or otherwise, Alberto Gonzales may be close enough to make the strategy work. But it only works if Bush can play on the uncertainty over Gonzales' views to his advantage, leaving both Republicans and Democrats thinking that they are getting a nominee they can tolerate. If Republicans can see in him a trusted Bush loyalist, and Democrats can see in him a hope for protecting abortion rights, both sides might be able to live with him, at least if he is packaged at the same time with a more palatable antiabortion nominee.

"Sometimes conflicting perceptions based on different perspectives and different sources of research can result in the parties' having very different views of the same candidate," Yalof said. "It can result in a political explosion, but it can also result in a marriage of convenience. That may be what the Republicans are thinking now: Can we find somebody we love that they won't hate?"

In the end, that may not be easy to do. As a candidate, Bush offered words of praise for Scalia and Thomas, telling the Weekly Standard at one point that he admired Scalia in particular for "the judicial philosophy he defends." If Scalia and Thomas are Bush's models, there simply may be no room for compromise, and the battles over appellate court nominees like Owen and Estrada will have been only the warm-up for a summer smackdown to come. Interest groups on both sides are preparing for the fight, and they each want to be ready to throw the first punch.

"What's going to be very important for progressives, including us, is to try to be able, very quickly upon a nomination, to articulate concerns and problems," said Mincberg. Advocacy groups were successful in making their concerns known out of the box when Reagan nominated Robert Bork to the court in 1987, but not as successful when the first President Bush nominated Clarence Thomas four years later. The Senate rejected Bork 58-42 but confirmed Thomas 52-48. Getting out front with a message this time is "an important thing for us to do," Mincberg said.

It also may be an easier thing to do this time around. While lower-court nominations are usually the stuff of inside politics, issues surrounding Owen and Estrada -- and, more recently, William Pryor -- have begun to catch the public's attention. People are beginning to form opinions about the kinds of candidates Bush nominates, and the ways in which the Democrats respond.

"Never before, or at least not in the past several decades, have judicial nominations taken on such visible role," Aron said. "They're a front-burner issue now, and the public spotlight has been on judicial nominations for months. You have more people interested, many more organizations involved in the process, and that means the stakes are that much higher and the battle will be that much more energetic and visible than it ever has been before."

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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