November 10, 2002

November 10, 2002 | Commentary on Legal Issues

ED111002:  The Next Senate Battle: July 2003

By recapturing the Senate in Tuesday's election, the Republicans set the stage for the next political battle -- a fight for control of the Supreme Court.

When the current term ends next summer, the nine justices of the Supreme Court will have been working together, without any changes in personnel, for nine years. The last time a group of justices worked together so long was in the early 1800s. By any measure of history we are due -- indeed, overdue -- for a change at the Court. For the past several years, as each term of the Court closes, speculation grows that a retirement announcement is at hand. And for just as long, the speculation has withered. The Court has simply moved on to the next term.

With the Republican victory, however, a Court vacancy becomes far more likely. At least two of the justices, Chief Justice William Rehnquist, 78, and Associate Justice Sandra Day O'Connor, 72, reportedly have been considering retirement for several years. Many have speculated that one or both of these conservative justices have been waiting for a favorable political environment before announcing their departure.

Rehnquist and O'Connor have been on the court 31 and 21 years, respectively. That's a long time in one job from anyone's perspective. Predicting a retirement is risky business, but come July, bet on one (or both) of them to be heading home to Arizona. (Conversely, the Republican victory likely will make the court's eldest Justice, liberal John Paul Stevens, 82, postpone any retirement plans.)

Who, then, are the potential nominees, should one of the justices retire? A number of factors will affect President Bush's decision. For one, the chief justice position has traditionally been filled by a nominee who is already a judge. Thus, if Rehnquist retires, his replacement likely will be someone already serving in the federal or state judiciary. One of the sitting Supreme Justices -- Justice Anthony Kennedy, perhaps -- might be elevated to the chief justice position. Or President Bush might nominate a sitting conservative federal appellate judge. Possible candidates include J. Harvie Wilkinson and Michael Luttig, both of Virginia, Edith Jones of Texas and Alex Kozinski of California, to name just a few.

If Justice O'Connor were to retire (or if a justice were promoted to Chief, leaving an associate justice slot vacant), President Bush would have greater flexibility in choosing a replacement. Indeed, he could look completely outside of the current judiciary. Many observers think the president would like to appoint the first Hispanic justice. If so, current White House Counsel Alberto Gonzalez, whom Bush appointed to the Texas Supreme Court, should have the inside track.

Alternatively, the president could tap any number of solidly conservative legal scholars in academia. Short lists in this category often include Richard Epstein, from the University of Chicago; Douglas Kmiec, dean of the Catholic University law school; and Eugene Volokh, a very young candidate from UCLA's law school. Another possibility with a special appeal is Viet Dinh, a former professor at Georgetown University who now serves as an assistant attorney general in the Justice Department; Dinh would be the first Asian-American appointed to the Supreme Court.

The wild card in these kinds of speculative "name games," of course, is the Democratic reaction to any nominee. When campaigning in 2000, President Bush said he would seek to nominate someone in the mold of Justices Antonin Scalia and Clarence Thomas, widely considered the two most conservative justices. Already, some Democrats (for example, Sen. Ted Kennedy) have served notice that their party's defeat in this year's elections won't end their effort to block nominees they perceive as "extreme."

Conceivably, they could even take the rare (and nearly unprecedented) step of filibustering a Supreme Court nominee, requiring 60 votes to end debate. Filibustering is an extreme tactic. Traditionally it has not been used in such battles. (It went unused even during the highly contentious nomination of Clarence Thomas in 1991.) The last filibuster over a Supreme Court nomination was in 1968, when the Senate stopped President Lyndon B. Johnson's effort to elevate Justice Abe Fortas to chief justice.

The threat of a filibuster might be used to attempt to force President Bush to name a justice perceived as more "moderate" by the Democratic opposition. It remains to be seen just how big a battle will be fought. But make no mistake, the next Senate battle is looming. Expect it to hit next July when the term ends and at least one of the justices announces a retirement.

Paul Rosenzweig is senior legal research fellow in the Center for Legal and Judicial Studies at The Heritage Foundation and an adjunct professor of law at George Mason University.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies