June 17, 2005
By Jesse J. Holland
Associated Press
WASHINGTON (AP) - A potential Supreme Court vacancy this summer wouldn't automatically mean a White House nomination would immediately follow. Conservatives worry that Congress' August recess would give Democrats too much time to demonize President Bush's nominee before a vote.
It might make sense to wait until September, says Sen. John Cornyn, R-Texas, and "not leave the nominee hanging out like a pinata for people to take a whack at during the month we're in recess."
What to do if a Supreme Court justice retires is much discussed in Washington these days. Eighty-year-old Chief Justice William Rehnquist is fighting cancer, and there is talk that Justices Sandra Day O'Connor, 75, and John Paul Stevens, 85, might consider stepping down soon.
Delaying a nomination until September is one possible tactic if a vacancy occurs.
Cornyn and other conservatives look back at what happened to the last failed Supreme Court nominee, Robert Bork. What went wrong, they say, is that Bork's journey toward confirmation was interrupted by lawmakers' August vacation, when liberal opponents took advantage of the vacuum to build their case against him.
Bork was nominated July 1, 1987, by President Reagan but didn't get his first hearing until September.
During August, Bork's opponents flooded the media and the public with material suggesting he was a dangerous extremist. Despite White House and conservative groups' later attempts to characterize Bork as a brilliant jurist, the Senate rejected his nomination, 58-42 in October.
Conservatives say they won't be caught flat-footed this time. Progress for America, a group recently formed to push the cause of putting more conservatives on the federal bench, says it will spend $18 million trying to get President Bush's nominee confirmed.
"The number one rule of nominations is that delay hurts a nominee," said Manuel Miranda, chairman of the Third Branch Conference, another group that advocates for Bush nominees. Miranda formerly worked on judicial nominations for Senate Majority Leader Bill Frist, R-Tenn.
Whenever Bush does make a nomination, Pennsylvania Sen. Arlen Specter, the Republican chairman of the Judiciary Committee, could wait as long as six weeks to schedule hearings, giving committee members time to do their own vetting of the candidate.
If a nomination comes in June or early July, the August recess could leave the nominee languishing longer, Miranda said.
"That is a killer period of time to beat up a nominee, causing him to possibly have to pull out," he said.
Bush has had four and a half years to mull over who he might want on the high court, but there's no indication whom he might choose. If a vacancy occurs, most expect it to happen when the court finishes its current session at the end of this month.
Wendy Long, lawyer for the Judicial Confirmation Network and a former law clerk for Justice Clarence Thomas, said a delay in making a nomination wouldn't stop Bork-like attacks on the candidate from liberal groups.
"Yes, we're trying to avoid that, but the president deferring on naming someone is not going to cure that because the short list that everyone's been homing in on - People for the American Way and the Alliance for Justice and everybody - will just start hammering on all of the likely nominees," she said.
White House officials say there are two schools of thought on how soon to nominate a replacement or replacements if current justices retire. One tactic favors a quick pick - two or three days after the retirement is announced. Senate Republicans would then push for a quick vote.
Others want a longer wait - maybe as long as until September - in the hope that Bush's opponents would overreach or make mistakes that would make them look purely political and obstructionist.
"That isn't the way it's ever worked before," said the Judiciary Committee's former chairman, Sen. Orrin Hatch, R-Utah. "If there's a vacancy, it doesn't take any administration very long to take care of it.
"But if there's going to be a vacancy in the next two weeks or so, that gives you just the month of July, and it usually takes a little bit more than a month unless it's somebody who is so acceptable - like a member of Congress or something like that - and even that wouldn't be easy in the current climate."
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