With Brennan's retirement, the president can build a conservative majority. But he faces a bitter fight in the Senate that could cost him politically.
Most presidents yearn for the chance to name a Supreme Court justice. White House occupants may come and go, but Supreme Court justices seem to stay on forever. Picking the right justice gives a president the chance to leave his ideological stamp on the law of the land for decades. When presidents guess wrong, as they sometimes do, they deeply regret it.
Now George Bush has his chance. Last week Justice William J. Brennan Jr., the leading avatar of liberal activism for the past 20 years, resigned after a mild stroke convinced the 84-year-old jurist that he could no longer carry on. For a Republican president, the opportunity to replace a liberal of Brennan's throw-weight with a conservative of his own choosing should be an occasion for barely restrained glee. Yet inside the White House, the mood was more anxious than joyful. Publicly, Bush uttered the usual solemnities about seeking a jurist who would "faithfully interpret the Constitution." Privately, the president and his men braced themselves for a bitter fight that is almost sure to cost Bush politically--on Capitol Hill, within his own party, and quite possibly with the voters in 1992.
For 20 years the press and court watchers have been predicting a sharp turn to the right by the High Nine. But thanks in large part to a skillful rear-guard action by Justice Brennan (page 19), the landmarks of the liberal Warren court have been fundamentally preserved--nicked and trimmed in some cases, but broadened and bolstered in others. Brennan's departure finally ensures the long-awaited rightward shift. Indeed, no matter whom Bush chooses, the court in the 1990s is likely to render conservative decisions on the highly charged social issues of racial discrimination, free speech, the rights of criminal defendants and the separation of church and state. On the most controversial issue of all--abortion--the new justice may well cast the decisive vote to overturn Roe v. Wade, the 1973 landmark decision giving women the right to an abortion. Says Bruce Fein, a constitutional-law scholar, "This means Roe v. Wade is set for the guillotine."
That is precisely why Brennan's departure will plunge Bush and his men into the vortex. GOP strategists are predicting a civil war within their own party. Bush has already alienated the party's right wing by backing off his campaign pledge not to raise taxes. Now he risks causing a revolt if he fails to pick a right-to-lifer. Yet if he seeks to placate the conservatives, he will disappoint GOP moderates, who argue that the party's future depends on attracting younger voters who tend to be pro-choice. "The president will be hurt by this, but he isn't up for election for two years," says a Republican political consultant. "But it's going to kill people like Lynn Martin and Claudine Schneider [pro-choice Republicans in tough Senate races against popular Democratic incumbents] in November. He's already taken the tax issue away from us, and now he enrages pro-choice women. What more blows can we absorb?"
Downward shove: More immediately, Bush runs the very real risk that his nominee will be rejected by the Democratic-controlled Senate. Democrats will try to turn the confirmation hearings into a political stage show that casts Bush as a heartless conservative and their own party as the defender of individual liberty and civil rights. All this posturing and feuding will come at a time when Bush badly needs bipartisan amity to work out a "Big Fix" to reduce the federal deficit. And it may give a downward shove to his standing in opinion polls that has finally begun to erode after floating at near-record approval ratings for much of his presidency.
George Bush is the president still known by his childhood nickname: "Have Half." He has squirmed and flip-flopped on the subject of abortion for years. But now he finds himself in the position of bearing ultimate responsibility for the biggest blow to abortion rights since Roe. Next year the Supreme Court could hear a challenge to a new statute passed by the Louisiana Legislature that bans abortions except in the case of rape or incest, or to save the life of the mother. The Supreme Court--the Bush court--might do what even the Reagan court avoided doing, and directly overrule Roe. The decision could come on the eve of the 1992 presidential election and Democrats will put the blame squarely on George Bush. Already, White House strategists are plotting to soft-pedal the impact of such a radical shift. They will point out that by overruling Roe, the court itself will not be banning abortion, but merely allowing the states to decide what to do. Probably less than a handful of states will take Louisiana's hard line. At least 10 will liberally permit abortions. The rest will be in the middle, allowing abortions but raising obstacles like parental consent.
Predictably, the pro-choice movement is gearing up a massive lobbying campaign aimed at the Senate, which will vote to confirm or deny Bush's nominee sometime this fall. Within 24 hours after the news of Brennan's resignation, the National Abortion Rights Action League (NARAL) had sent out a half-million telegrams to supporters. If Bush nominates a right-to-lifer, it will make the 1987 confirmation struggle over Reagan nominee Judge Robert Bork "look like kindergarten class," vowed Kate Michelman of NARAL.
In recent decades the Senate generally has not spurned a president's choice for the high court unless the nominee was somehow morally deficient or plainly unqualified. But the Senate's rejection of Judge Bork established a precedent to rebuff a nominee on ideological grounds. Democratic investigators on the Senate Judiciary Committee will search for evidence that Bush's choice is guilty of some peccadillo, like the pot smoking that cost federal appeals court Judge Douglas Ginsburg a seat in 1987. But they will also pore through speeches, writings and judicial opinions, looking for evidence of ideological extremism. Bork was hung. by the outspokenness of his views and his acerbic assaults on liberal precedents, feminists and the press.
Character assault: The Judiciary Committee chairman who defeated Bork, Democratic Sen. Joseph Biden of Delaware, has asked to be consulted by the White House before Bush makes his choice. Stricken by a brain aneurysm after his unsuccessful presidential bid in 1988, Biden is now "in good health and clearly up for the fight," says former aide Mark Gitenstein. Should Biden flag, Sen. Edward Kennedy will lead the charge; if the Massachusetts Democrat is as demagogic this time around as he was for the Bork battle, Bush's nominee is in for a withering character assault.
Over the weekend, Bush and his aides began winnowing candidates who could survive the Senate gantlet and still satisfy party hard-liners. By Sunday morning the White House had a short list and hopes to propose a nominee this week. According to one White House insider, the choice is likely to be "quite conservative but definitely not a bomb thrower." The odds-on favorite is Solicitor General Kenneth Starr. Though Starr's views are fairly conservative, he comes across as a moderate. Unlike Bork, who was bearded and bristling at his hearings, Starr radiates a kind of boyish charm. White House aides worry that Starr may appear a little too boyish--now 44, he served on the U.S. Court of Appeals for only six years before becoming the Justice Department's solicitor general, the administration's advocate before the Supreme Court. In that role, Starr argued on behalf of the administration to overturn Roe--a position that will please conservatives but makes him a target for liberals.
To appease Southern senators of both parties, the White House is seriously considering a "Southern strategy." Texasborn and educated at Duke, Starr qualifies as Southerner, though he spent the last 15 years as a lawyer and judge in California and Washington. A truer Southerner would be Judge Patrick Higginbotham of the Fifth Circuit Court of Appeals, who grew up in Alabama and lives in Dallas. Higginbotham passes most conservative litmus tests and would make a personable witness, but some are suspicious of him because he is supported by Democratic Sens. Lloyd Bentsen of Texas and Dennis DeConcini of Arizona.
The White House has been floating the names of several women, including Ninth Circuit Court of Appeals Judge Pamela Rymer, a Californian, and U.S. Trade Representative Carla Hills. Judge Edith Jones of the Fifth Circuit is a Texas law-and-order conservative--as well as a former law partner of Secretary of State James Baker. Anticipating the retirement of Thurgood Marshall, the court's aging black justice, Bush could name Clarence Thomas, a federal appeals judge in Washington. But Thomas might have difficulty getting confirmed because liberals accuse him of trying to dismantle affirmative action as chairman of the Equal Employment Opportunity Commission during the Reagan administration. In the end, Bush is likely to go with a white male, say White House aides. "If you look at the women and the minorities," explained a Bush adviser, "There's not one that could be called a reliable conservative."
A "reliable conservative" would give the court a predictable conservative majority for the first time in decades. During the 1970s, the court was dominated by pragmatic centrists who voted on a case-by-case basis. The result was shifting majorities and unpredictable results. Under Chief Justice Warren Burger, the court generally upheld affirmative action and protected free speech, but it whittled away at criminal rights and revived the death penalty after first striking it down as unconstitutional in 1972. In the '80s, prodded by the arguments of the Reagan administration, the court did move to the right. Three Reagan appointees--Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy--regularly joined Chief Justice William Rehnquist and Justice Byron White to form a conservative bloc. Often the decisions were 5 to 4 and narrowly drawn. A shrewd politician, Brennan was able to hold together a liberal l minority of Marshall, Harry Blackmun and, usually, John Paul Stevens. From time to time, the liberals could snare a fifth vote, as they did in knocking down Congress's anti-flag-burning statute last month. Neither White nor O'Connor is an entirely predictable conservative. But the departure of Brennan now means there is almost certain to be a pool of six conservatives to create a majority.
More vacancies: Two of the liberals are bound to follow Brennan off the court soon. Marshall is 82, Blackmun 81, and neither is in good health. Blackmun had prostate cancer, Marshall has had a variety of ailments. Although Marshall has vowed that he will have to be carried out of the court, it is entirely possible that Bush will have more vacancies to fill.
Presidents are sometimes surprised by the justices they choose. Brennan, after all, was an Eisenhower appointee. Blackmun seemed conservative enough when Richard Nixon picked him, but he became a liberal once on the court. Bush cannot be entirely certain that the justice he chooses will not change during his career on the court. But Bush can be sure of one thing: the process of picking that justice and getting him confirmed will be a political ordeal. If Bush misjudges, he could damage his own career.
Speculation on who will fill the high-court vacancy centers on candidates with polished. mainatream-conservative portfolios. Aside from those here, others being touted include U.S. Trade Representative Carla Hills, Chicago appeals Judge Frank Easter brook and California district Judge Pamela Rymer. But George Bush may go beyond all the short lists--and try to forestall controversy with a nominee whose views on sensitive issues aren't well known.
White House staffers name Solicitor General Starr. 44, as the odds-on favorite. He has crafted an image as a careful, thoughtful conservative--avoiding the ideologue tag that doomed Robert Bork.
A Dallas appellate judge, Higginbotham, 51, has courted politicians and would likely clear the Senate. Ironically, his support among Democrats may raise suspicions on the right.
A federal judge in D.C., Thomas, 42, is being pushed as a viable minority candidate. But his relative inexperience and rough passage through recent confirmation hearings could make him a long shot.
A law-and-order Texan, Jones, 41, like Higginbotham, offers Bush a politically inviting choice: a Southerner on the court. Her views on abortion are unclear, making pro-choicers wary.
The junior aerator from Utah, Hatch, 56, has coveted a Supreme Court seat for years. Bush might turn to him if other nominees stumble-- the Senate would scarcely reject one of their own.
The wild card. A California federal judge, Kozinski,40, has made a name as a brilliant and eccentric conservative, as comfortable writing on the law of contracts as on the joys of Nintendo.