Stage set for high court showdown

Posted: Sunday, June 22, 2003

WASHINGTON Republicans and Democrats are digging in for a pitched battle over a presidential nomination that hasn't been made for a vacancy that doesn't exist.

The possibility of a Supreme Court opening or even two has set the stage for possibly the most divisive congressional brawl since President Clinton's impeachment trial.

The White House already has a short list of potential nominees. Senate Republican leaders are trying to rewrite the chamber's rules to make it harder for Democrats to stall a vote on a candidate. Democratic senators are angling for a role in Bush's selection process; several have made specific recommendations.

June traditionally is a time for retirement announcements from the justices, and this week could be the court's last before it recesses until October.

There is widespread speculation that Chief Justice William H. Rehnquist, 78, and Justice Sandra Day O'Connor, 73, are considering retiring.

While neither justice has signaled that such an announcement is imminent, the prospect of a confirmation fight already produced some fierce shadowboxing.

White House officials dismiss the frenzy as idle speculation, given that there is no such vacancy. But the skirmishing underscores just what is at stake.

Bush's choice or choices could tip the balance on many major issues, including abortion, the death penalty and racial questions.

''These are early warning signals to the president over whom he should or shouldn't nominate,'' said Stephen Wayne, a professor of government at Georgetown University. ''Every-body's getting involved in it.''

Ready for action are groups such as the National Abortion Rights League, People for the American Way and the Heritage Foundation.

The current nine justices have served together since 1994. The court has a narrow conservative bias, frequently delivering 5-4 votes on major issues. That includes the ruling that stopped Al Gore's bid for a recount in Florida in 2000 and handed Bush the White House.

''The court is very narrowly balanced between its conservative and liberal wings. And George Bush has been very aggressive in promoting conservative judicial nominees,'' said Alan J. Lichtman, a political scientist at American University.

Senate Democrats have managed for months to block a confirmation vote on two conservatives nominated for federal appeals courts, Washington lawyer Miguel Estrada and Texas judge Priscilla Owen.

In other areas of his presidency, Bush has taken care not to repeat what he views as mistakes of his father. So the president does not want to nominate someone who is an unknown quantity and who may turn out to be a surprise, as was the case with now-Justice David Souter, said those close to the process.

Souter usually votes with the court's liberal minority in key 5-4 decisions.

Put in charge of the selection process is White House counsel Alberto Gonzales, a former member on the Texas Supreme Court. Gonzales himself is widely believed to be on Bush's short list for the court.

Gonzales last week shot off two letters to Senate Democrats responding to their requests to be consulted on a prospective nominee.

The first letter promised that Bush would nominate ''an individual of high integrity, intellect and experience'' if a vacancy arises.

The second letter sought to assure senators that the White House was not ruling out consultations with Senate Democrats, even though White House spokesperson Ari Fleischer had appeared to do just that.

Fleischer had dismissed Senate Majority Leader Tom Daschle's offer to consult with the president on a prospective nominees as ''a novel new approach'' to the process of selecting Supreme Court justices.

Rehnquist and O'Connor are believed to want to retire while a Republican is in the White House.

John Paul Stevens is the oldest member of the bench at 83 and also is talked about as a possible retiree. Even though appointed by a Republican, President Ford in 1975, Stevens is one of the court's liberal members and seems disinclined to let a GOP White House choose his successor.

A Supreme Court confirmation battle could become even more complicated if it is takes place next year, during a presidential election.

Partisan tensions already run high and Republicans only control the Senate by two votes. That makes the prospect of a drawn-out fight over a Bush nominee seem high, unless the president picks someone capable of overwhelming bipartisan support.

''The Senate is not a rubber stamp, and it's time for the administration to accept that basic fact,'' said Sen. Edward M. Kennedy, D-Mass.

Tom Raum has covered Washington for The Associated Press since 1973, including five presidencies.



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