August 2, 2007
By Peter Baker
Washington Post-The Trail
After calling John G. Roberts Jr. two years ago last month to ask him to serve on the Supreme Court, President Bush hung up and told aides, "I just offered the job to a great, smart, 50-year-old lawyer." The emphasis, of course, was on "50-year-old" -- Bush's way of saying he had just made a choice that would help shape the Supreme Court for three or four decades to come. Or so he thought.
Roberts's seizure during a Maine vacation this week may not mean anything in terms of his longevity on the court but it certainly offered a reminder that anything can happen at anytime. If there were a sudden, unexpected vacancy -- and remember, Roberts is the young whelp compared to his brethren, ranging in age up to John Paul Stevens at 87 -- it would transform not only the Bush presidency but the campaign to succeed him. And even if not, the Roberts health scare pointed out again the stakes in 2008 with the future of the court on the line.
After all, the court term that ended this summer was the first full session featuring both Roberts and Samuel A. Alito Jr., Bush's other appointee, and the shift to the right has been notable on issues ranging from gender discrimination to desegregation to partial-birth abortion, thrilling conservatives and alarming liberals. An increasing number of Americans worry that the court is going too far to the right in the latest Washington Post-ABC News poll -- 31 percent compared to 19 percent in July 2005 when Roberts was first nominated. The proportion that thinks the court is generally balanced in its decisions has fallen from 55 percent to 47 percent in that time period.
So what would happen if another seat opened on the court before Bush leaves office? All-out war, probably, and one that would become a leading issue on the campaign trail as well as in the capital. Some Bush advisers believe a new Supreme Court fight would be the best chance for him to influence his legacy, while some Democrats would try to block any appointment even 18 months before the end of his presidency. New York's Chuck Schumer, the third-ranking Democrat in the Senate, last week said lawmakers "were hoodwinked" by Roberts and Alito into believing they would be more respectful of precedent than they have turned out to be. Republican Sen. Arlen Specter (Pa.) even told the Politico that the confirmation testimony of Roberts and Alito should be reviewed to see if they really were forthcoming about the way they would perform on the court.
As a result, Schumer vowed to try to thwart any more Bush nominations to the Supreme Court for the rest of the president's term. "Given the track record of this president and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least, I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances," Schumer told the American Constitution Society. "They must prove by actions, not words, that they are in the mainstream, rather than the Senate proving that they are not."
That, of course, set off howls among conservatives who complained that liberals like Schumer are simply poor losers who don't respect a president's right to put like-minded people on the court. "This is the Stalinism of the libs, just total control," Rush Limbaugh said on his radio program. "They don't get their way? Shut down the process." Ed Whelan, president of the Ethics and Public Policy Center, a conservative think tank, secured a clarification from Specter that he "did not mean to imply that either Roberts or Alito were disingenuous when they appeared before the committee."
Even if there is not a nomination battle between now and November 2008, the candidates on the trail are focusing on the likelihood that the next president may have two or three seats on the court to fill. On the Republican side, former Massachusetts governor Mitt Romney this month secured the endorsement of Wendy Long, counsel to the Judicial Confirmation Network and a key player in conservative circles when it comes to court nominations. She told the American Spectator that Romney "is the only one I'm absolutely sure" will give the country more nominees like Roberts and Alito. Former New York mayor Rudy Giuliani, a social liberal, nonetheless promised Iowa activists this month that he would appoint justices like like Roberts and Alito.
On the Democratic side, the leading candidates used an appearance this month before the American Association for Justice, the trial lawyers group, to excoriate Bush appointees. "At the time," Sen. Hillary Rodham Clinton (N.Y.) told the group in Chicago, "I warned in my speeches on the floor that especially with Justice Alito he had been so willing to side with big business against nearly anyone on any issue during his judicial career that if given the opportunity to serve on the Supreme Court he could become part of a majority that began to undo years of precedent." Former senator John Edwards (N.C.) added: "They're eating away at the fabric of America, of who we are and what we are."
Not that they're getting ahead of themselves or anything, but some are already projecting who Democrats would appoint to the court should they win next year. Tom Goldstein, who heads the Supreme Court practice at Akin Gump Strauss Hauer & Feld, came up with a list of 30 likely Democratic nominees on the popular SCOTUS blog, then narrowed it down to the four likeliest choices for a first appointment -- Judges Johnnie Rawlinson and Kim McLane Wardlaw of the 9th U.S. Circuit Court of Appeals; Sonia Sotomayor of the 2nd Circuit; and Leah Ward Sears of the Georgia Supreme Court. His five predictions for a second or third seat under a Democrat: Michigan Gov. Jennifer Granholm, Massachusetts Gov. Deval Patrick, Colorado Sen. Ken Salazar, Harvard Law School Dean Elena Kagan and Judge Merrick Garland of the U.S. Circuit Court of Appeals for the District.
None of them, it is fair to say, is much like Roberts or Alito. And so the stakes for the campaign are clear for both sides.
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