Washington – Barring a last-minute compromise, Republican senators this week are expected to exert their majority muscle and force a showdown over President Bush’s controversial judicial nominees.
The outcome won’t just determine whether judges Janice Rogers Brown, Priscilla Owen or William Pryor move up to the appellate court bench.
It could also affect the composition of the U.S. Supreme Court, influencing federal law for decades.
If Democrats refuse to allow a straight yes or no vote on the nominees, Republicans likely will exercise the so-called nuclear option, voting to change Senate rules and remove Democrats’ ability to filibuster judicial approvals. After that, Bush would have a far easier time with all of his court nominations.
At least one Supreme Court justice is expected to retire this summer.
“The fact that you have an older court, that you are going to have vacancies, most certainly is an issue that we’re concerned about,” said Carrie Gordon Earll, spokeswoman for Focus on the Family, a Christian group based in Colorado Springs.
Allowing Bush’s appellate nominees to go forward is important, Earll said, both because of the decisions they make and because that is the pool from which Supreme Court nominees are pulled.
Focus founder James Dobson started a political action arm and has been lobbying ferociously for the filibuster’s elimination.
Social conservatives want a rejiggered Supreme Court that will overturn abortion and gay rights. They want the Supreme Court to allow religious freedoms such as prayer or Bible reading in school and public displays of the Ten Commandments.
They also know it will take more than the expected retirement of Chief Justice William H. Rehn quist to accomplish their goals.
But Dobson and others are working zealously, planning for the retirements of one or two other justices that could swing the power of the court sharply to the right.
Liberal groups are working just as feverishly to keep that swing from happening.
The court has voted 5-4 in a number of decisions affecting key social issues in recent years.
Over the next three-plus years, Bush could replace two or three jurists.
Rehnquist, 80, suffers from cancer. Justices John Paul Stevens, 85, Sandra Day O’Connor, 75, and Ruth Bader Ginsburg, 72, also have been treated for cancer.
Federal laws affecting abortion, consumer and worker safety, the environment and personal property rights could start to change if Bush appoints more conservative judges, legal experts predict.
“I think it’s fair to say hundreds of cases would be up for grabs,” said David Cole, a professor of constitutional law at George town University Law Center.
How quickly or sharply that change will come can’t be known. Some court watchers say it will be incremental, taking decades. Others believe a new court could overturn previous decisions on such significant issues as legalized abortion.
“I think (a more conservative court) would overturn a few things,” said Harvard University Law School professor Richard Fallon.
That could mean rulings that declare campaign finance law invalid, declare the endangered species act unconstitutional, and take on other federal environmental laws as well as worker safety regulations and the minimum wage.
A more conservative court is likely to take the view that if state or city zoning laws negatively affect the value of a private person’s land, Fallon said, that property owner should be compensated.
Cole believes it’s unlikely a more conservative court would start reversing previous decisions, but said they they could make rulings in new cases that profoundly change laws. As they establish new legal precedents on issues such as affirmative action, privacy, abortion and private-property rights, the previous precedents mean less.
Nominating a new chief justice from outside the court would allow Bush to pick someone younger – someone who could lead the court for decades.
“Presidents like to leave their imprint on the Supreme Court,” Fallon said. “He would be likely to leave a bigger imprint for a longer time if he appointed a chief justice who was likely to serve as chief justice for a long time.”
Front-runner nominees include D.C. Circuit Court Judge John Roberts Jr.; Michael W. McConnell on the 10th Circuit Court of Appeals; Fourth Circuit Court of Appeals Judge J. Michael Luttig, a Texas native appointed to his current role by George H.W. Bush; Fourth Circuit Court of Appeals Judge James Harvie Wilkinson III, nominated to the federal bench by Ronald Reagan; and Fifth Circuit Court of Appeals Judge Edith Hollan Jones, who practiced law in Texas.
All are considered very conservative.
If only Rehnquist leaves, there will not be as much immediate impact because he votes with fellow conservatives Thomas and Scalia, Cole said. A Bush appointee replacing Rehnquist “would not likely alter the voting pattern,” in the short term.
“Over the long term, the impact would be substantial,” Cole said.
If O’Connor leaves and Bush replaces her, Cole and other legal scholars said, there is likely to be some change in votes. O’Connor is a conservative but has been the swing vote in a number of cases involving women’s rights, affirmative action and criminal defense.
The most profound change will occur if Bush can replace Stevens, who is a solid part of the court’s more liberal arm, Cole said.
Staff writer Anne C. Mulkern can be reached at 202-662-8907 or amulkern@denverpost.com.
