Howard J. Bashman's appellate columns, etc.

An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure

Monday, June 09, 2003


U.S. Supreme Court Vacancies On The Horizon; What To Expect This Summer If One Or Two Vacancies Arise On The Court

By Howard J. Bashman
Monday, June 9, 2003

After the Supreme Court of the United States later this month delivers decisions in the last of its pending argued cases, chances are quite good that one or two Justices will announce their intention to retire from the Court just as soon as the U.S. Senate confirms a successor. The nine Justices currently on the Court have served together for nearly nine years, one of the longest periods in which no vacancies have occurred at the Court in the history of this nation.

The process of nominating and confirming judges is, to put it mildly, a bit different today than it was back in the spring of 1994 when President Bill Clinton nominated First Circuit Chief Judge Stephen G. Breyer to replace Justice Harry A. Blackmun on the Court. Today Democrats in the U.S. Senate are filibustering two nominees to the U.S. Courts of Appeals, and three other possible filibusters loom on the horizon. Meanwhile, almost nine years later, Breyer remains the junior Justice on the Court.

The person viewed as most likely to retire in the coming weeks is Chief Justice William H. Rehnquist. He joined the Court as an Associate Justice in December 1971 and became Chief Justice in September 1986. He will turn 79 in October. The Justice viewed as second most likely to retire is Sandra Day O'Connor, who joined the Court in September 1981. She is now 73 years old.

Both Rehnquist and O'Connor have been integral parts of the conservative revolution on the Court. Their votes, together with the votes of at least three of their colleagues, have imposed much more stringent requirements on state prisoners seeking federal habeas corpus relief, and their votes have enshrined into law greatly strengthened principles of state sovereignty and Eleventh Amendment immunity.

To preserve their accomplishments in these and other respects, these two Justices are expected to choose retirement when the White House is in Republican control. Not only is that the case now, but Republicans currently also command a very narrow majority in the U.S. Senate. The retirement calculus might not appear as favorable one year from now. In the summer of 2004, the nation will be only months away from the next Presidential election, scheduled for November 2004. Also in November 2004, a third of the seats in the U.S. Senate will be up for grabs.

So, Rehnquist and O'Connor face a choice: either retire now and be assured that a Republican President and Senate will determine their successors, or stay on perhaps for two more years, with no guarantee of which party will control the relevant branches of government. Principally for this reason, Rehnquist is likely to announce his retirement in the very near future, and I would not be surprised if O'Connor did the same.

The White House, to be sure, probably already knows whether one or both of these Justices plans to announce their retirement several weeks from now. There is always talk of a "short list" of potential U.S. Supreme Court nominees, and it would be no surprise if the White House has such a list for the Rehnquist and O'Connor seats, and also for the seat of Justice John Paul Stevens, who joined the Court in December 1975 and who recently turned a very active and healthy 83.

Of the nine Justices now serving, the confirmation proceedings for seven of them (Rehnquist, remember, had the pleasure of experiencing it twice, first to be an Associate Justice and again to be Chief Justice) went relatively smoothly. Two confirmation proceedings, however, did not.

Justice Anthony M. Kennedy was not confirmed until February 3, 1988 to fill a vacancy that arose in June 1987 when Justice Lewis F. Powell, Jr. retired. Of course, the delay was not Justice Kennedy's fault. Rather, the U.S. Senate rejected the first nominee to fill that vacancy (then-D.C. Circuit Judge Robert H. Bork), and the White House later withdrew the name of its second nominee. Also, Clarence Thomas endured an unusually lengthy confirmation process that resulted in his confirmation in mid-October 1991, after the Court had already begun to hear cases earlier that month.

If a vacancy arises within weeks from now, the White House and Congress will have special reason to hope for prompt confirmation. Last week, the Supreme Court issued an expedited briefing schedule governing the Bipartisan Campaign Reform Act (BCRA) cases, and the Court has scheduled oral argument for Monday, September 8, 2003, nearly a month before the Court would usually begin to hear cases.

If Rehnquist and O'Connor announce their intention to resign in late June or early July, the BCRA oral argument date would provide only slightly more than two months for the White House to announce nominations and for the Senate to hold hearings and confirmation votes. While two months may sound like a blink of the eye to those who know that some of President Bush's nominees to the U.S. Courts of Appeals are still awaiting confirmation votes more than two years after being nominated, many of the most recent additions to the Supreme Court were confirmed quite rapidly.

Justice Stephen G. Breyer was nominated in mid-May 1994 and was confirmed in late July of that year. Justice Ruth Bader Ginsburg was nominated on June 22, 1993 and confirmed on August 3, 1993. Justice David H. Souter was nominated on July 25, 1990 and confirmed on October 2, 1990. And Justice O'Connor was nominated on August 19, 1981 and confirmed on September 21, 1981.

The fact that oral argument in the campaign finance reform act case is scheduled for early September 2003 may lessen the chance that President Bush would seek to promote a currently-serving Justice to the position of Chief if Rehnquist were to retire. Because the Senate must confirm the new Chief regardless of whether he or she already serves on the Court, promoting from within would create the need for two confirmation hearings instead of one. Also, I question whether either Justice Antonin Scalia or Justice Thomas is especially eager to undergo another confirmation hearing, and I do not think that the White House intends to promote any of the other Justices now serving on the Supreme Court.

I view Fourth Circuit Judge J. Harvie Wilkinson III as the most likely nominee to replace Rehnquist. Wilkinson is indisputably smart, acceptably conservative, can be quite charming, and previously served as Chief Judge of the Fourth Circuit. If O'Connor were to retire, I view California Supreme Court Associate Justice Janice Rogers Brown as her most likely successor. Justice Brown is very intelligent, acceptably conservative, has a confident, independent voice, and would be the first African-American female to serve on the Court.

When a vacancy occurs, there will undoubtedly be pressure on President Bush to appoint the first Hispanic to the Court. The leading candidate is White House Counsel Alberto R. Gonzales, who previously served on the Supreme Court of Texas. I view Gonzales as a good choice to replace one of the Court's more moderate Republican appointees, John Paul Stevens.

President Bush has shown through his use of the judicial appointment power that he seeks conservative judges who value judicial restraint. If Gonzales were to replace Rehnquist, there is the distinct possibility that the Court could end up even more moderate than it is today. And if Gonzales were to replace O'Connor, surely many would question why one female was not replaced by another.

On the hot-button issue of abortion, the Court's current membership favors constitutional protection of a woman's right to choose by a vote of 6-3. O'Connor is one of the six, and Rehnquist is one of the three. Thus, even if O'Connor were replaced by someone who would prefer to overturn Roe v. Wade, that change would not prove dispositive (except perhaps on the issue of partial birth abortion, where Justice O'Connor sides with a 5-4 majority).

Special interest groups of all political persuasions view Supreme Court vacancies as the equivalent of the World Series and Super Bowl all wrapped-up into one. Liberal groups undoubtedly will howl if the nominee to replace Rehnquist seems equally as conservative, and you can be sure that abortion rights groups will press sympathetic Senators to ensure that O'Connor's replacement does not place Roe v. Wade just one vote away from extinction.

Of course, the big unknown is whether Democrats in the U.S. Senate will use the filibuster to prevent the confirmation of a Supreme Court nominee. I would expect that a filibuster would be especially difficult to justify if any of the nominees I view as likely receives the nod. But if the Democrats in the Senate find a given Supreme Court nominee to be especially objectionable, I would certainly expect them to employ a filibuster.

And if a filibuster of a U.S. Supreme Court nominee occurs, it will be interesting to see whether the public then becomes interested in the tactic. Of course, if the results of the 2000 Presidential election are any indication, even if the public does become interested in the use of filibusters against judicial nominees, about half will favor it and half will be opposed.

Today, for better or worse, the judicial nomination and confirmation process is filled with many more recriminations than existed back in the summer of 1994 when the U.S. Senate confirmed Justice Breyer to the Court. If one or two vacancies open on the Court in the forthcoming weeks, it should make for quite an interesting summer.

This article is reprinted with permission from the June 9, 2003 issue of The Legal Intelligencer © 2003 NLP IP Company.

Sunday, June 01, 2003


'Conscience' Is No Cause for Judges to Flout Laws

By Howard J. Bashman
Sunday, June 1, 2003

May a U.S. Court of Appeals judge refuse to follow binding U.S. Supreme Court precedent if the judge believes that the precedent is unconscionable?

"Yes" is how 9th Circuit Judge Harry Pregerson recently answered that question. Putting aside whether Pregerson deserves to be respected or pilloried for his personal act of conscience, such willful judicial disobedience of a higher court's authority has no place in our judicial system.

In March 2003, the U.S. Supreme Court ruled that California's three-strikes law, which requires a sentence of 25 years to life for certain repeat criminal offenders, did not violate the 8th Amendment's prohibition against cruel and unusual punishment. A companion ruling issued the same day prohibited federal courts, on habeas corpus review, from setting aside as unconstitutionally excessive three-strikes sentences that California's state court system had imposed.

On May 19, 2003, a three-judge panel of the U.S. 9th Circuit Court of Appeals began disposing of a backlog of three-strikes appeals from federal trial courts in California. The U.S. Supreme Court's decisions issued in March dictated the outcome: No matter how draconian the sentences of 25 years to life might appear when the third strike was a petty theft offense, lower federal courts were powerless to grant relief under the 8th Amendment.

The 9th Circuit panel assigned to rule on the backlog of cases consisted of judges Harry Pregerson, Stephen Reinhardt and Susan P. Graber. The 9th Circuit in each case properly rejected the prisoner's challenge to the three-strikes sentence.

But neither Pregerson nor Reinhardt was pleased. In each instance, Reinhardt issued a concurring opinion stating, "I concur only under compulsion of the Supreme Court decision I believe the sentence is both unconscionable and unconstitutional."

Pregerson, taking his displeasure one step further, refused to join in the rulings, writing instead: "In good conscience, I can't vote to go along with the sentence imposed in this case."

The U.S. Supreme Court sits atop this nation's hierarchical system of justice. Once the Supreme Court decides a question of constitutional law, judges serving on lower courts must apply the Supreme Court's ruling, whether they agree with it or not.

A federal judge whose conscience prevents him or her from applying the law faithfully should, at a minimum, refuse to participate in deciding those cases in which the impediment arises. For if one judge can elevate his conscience above the law, so can others, and soon we will have a system where judges at every level are free to decide cases based on personal predilection rather than binding judicial precedent and the texts of constitutions and statutes.

Of course, a party that refuses to obey a court's ruling for reasons of conscience is likely to face punishment for contempt of court.

Judges, no less, are expected to follow the law because that is what the judicial system demands of all participants.

Although no harm appears yet to have come from Pregerson's act of conscience, one easily can conceive of an act of judicial conscience-following that might cause great harm to the rights of a litigant. For instance, the nation is sharply divided between those who believe that abortion should be legal and those who believe it should not. Because the U.S. Constitution does not speak directly to the matter, a lower court judge reasonably could conclude that the U.S. Supreme Court erred in ruling that the Constitution protects a woman's right to have an abortion.

Assume that a hypothetical judge decides, as an act of conscience, that he will refuse to invalidate any law prohibiting abortion, even when such a law runs afoul of U.S. Supreme Court precedent. Every day that an abortion is unlawfully delayed by the judge's refusal to follow precedent would cause the woman to be one day closer to having a viable fetus. Such judicial insubordination could, through delay alone, deny the right to abortion that the U.S. Supreme Court has recognized.

Judicial insubordination is not a liberal or conservative issue, and it is equally intolerable in any of its possible manifestations.

Judges who willfully refuse to follow the binding precedent of higher courts do neither themselves nor the judicial system credit by following their conscience rather than the law.

Judges should not participate in deciding cases where their personal views prevent them from applying the law properly, and judges who do not recognize this truth call into question their very fitness to serve in the judiciary.

© 2003 Los Angeles Times. This essay first appeared on the op-ed page of The Los Angeles Times on Sunday, June 1, 2003.

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