Howard J. Bashman's appellate columns, etc.

Edith H. Jones for Chief Justice of the United States

By Howard J. Bashman
Monday, November 8, 2004
Chief Justice William H. Rehnquist is seriously ill with cancer. President Bush has just won reelection by an unexpectedly large margin. And the U.S. Senate that convenes in Washington, DC in January 2005 will consist of 55 Republican Senators, a gain of four seats over the very slim majority that the Republican Party previously enjoyed in that legislative body.

What impact will these developments have on judicial nominations generally, on the nomination of a new Chief Justice, and on the filibustering of judicial nominees whom liberal groups find most objectionable? It is too soon to know with any certainty, but it is not too soon to speculate.

Chief Justice Rehnquist has from the outset opposed the Supreme Court's decision in Roe v. Wade, and he has voted to overrule Roe every time the Court has had occasion to reconsider that decision on the merits. Nevertheless, the constitutional right to abortion recognized in Roe currently has the support of six Justices serving on the Supreme Court: John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy (although he has voted to uphold a law banning so–called "partial birth" abortion), David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.

Given the increased majority that Republicans will enjoy in the U.S. Senate and President Bush's unambiguous stand as an opponent of abortion, there is no reason for the White House to shy away from replacing Chief Justice Rehnquist with someone whose disagreement with Roe v. Wade is already well–established. And the U.S. Senate should not block confirmation of such a nominee, because Roe will still have support from six of the Court's nine members even if the new Chief Justice believes, as does the current Chief Justice, that Roe was wrongly decided.

For many of these very same reasons, the White House should and in all likelihood will nominate a replacement for Chief Justice Rehnquist who is as conservative as he is across the board. Who might fit the bill? The best available choice is probably Fifth Circuit Judge Edith H. Jones. She is reliably and firmly conservative, very smart, and is on record as disagreeing with Roe v. Wade. In addition to being outspoken, brash, and conservative, she is also young and female. The Court would have three females, its first female Chief Justice, and a young, conservative opponent of Roe to boot. Such a nomination would indicate without a doubt that the White House, in its second term, was not eager to compromise on the issue of judicial nominations.

Other marginally less controversial but equally conservative choices include Fifth Circuit Judge Jerry E. Smith and Fourth Circuit Judges J. Michael Luttig and J. Harvie Wilkinson III. Of those three, Judge Smith might be easiest to confirm and also least likely to disappoint. Long shot candidates include Third Circuit Judge Samuel A. Alito, Jr. (who is probably not as much of an arch-conservative as opponents fear) and California Supreme Court Justice Janice Rogers Brown (whose nomination to the D.C. Circuit is currently the subject of a filibuster).

The other Justices serving on the U.S. Supreme Court who are most likely to leave the Court during President Bush's second term -- John Paul Stevens, Sandra Day O'Connor, and Ruth Bader Ginsburg -- are not nearly as conservative as Chief Justice Rehnquist. If the White House does not try and succeed in confirming a very conservative replacement for Chief Justice, then the chances of replacing any of those other three Justices with nominees who are marginally more conservative declines substantially. Also, placing a third woman on the Court now will increase the flexibility the White House would enjoy if and when it comes time to replace Justice O'Connor or Justice Ginsburg.

Will Democrats in the U.S. Senate attempt to filibuster President Bush's first nominee to the U.S. Supreme Court? We should know the answer rather soon. But with the most recent round of election results, it is difficult to see what the Democrats will point to as their mandate for making the U.S. Supreme Court's membership even more liberal than it already is.

The question of filibusters is not academic with respect to many U.S. Court of Appeals nominees. By my unofficial count, in the current U.S. Senate, eight individuals nominated to various U.S. Courts of Appeals have been subjected to or threatened with filibusters, and seven remain in the running after D.C. Circuit nominee Miguel A. Estrada withdrew his name from consideration.

In addition, another four current nominees from Michigan to the U.S. Court of Appeals for the Sixth Circuit have been the subject of a blockade that stems from recriminations that date back to how President Clinton's Sixth Circuit nominees from Michigan were blocked by Senate Republicans. And Senator John Edwards has single–handedly bottled–up the nominations of two North Carolina residents, one for the Fourth Circuit and the other for the U.S. District Court for the Eastern District of North Carolina, by failing to return "blue slips" approving or disapproving these nominees.

In the current Senate, Republicans were able to gain just a few votes from more conservative Democrats in favor of confirmation of the currently–filibustered judicial nominees, but the necessary 60 votes to curtail debate could not be attained. The 55 seats that Republicans will now hold includes the gain of a seat from Georgia formerly held by Zell Miller, a conservative Democrat who supported many of President Bush's more controversial judicial nominees. Thus, the Republicans may hold four more seats but have only three more votes toward cloture of debate.

The math therefore suggests that judicial nominees who are already subject to filibusters in the U.S. Senate will continue to lack the necessary 60 votes to cut–off debate. I think that the White House, dealing from a greater position of strength than it enjoyed during President Bush's first term, should offer Democrats a compromise whereby two of the four Sixth Circuit vacancies from Michigan can be filled with candidates chosen by Michigan's Democratic Senators, in exchange for which the Senate will vote up–or–down on all of the currently filibustered U.S. Court of Appeals nominees and the two remaining Bush nominees from Michigan.

President Bush already has a vacancy to fill for the post of Solicitor General of the United States, the lawyer who represents the federal government before the U.S. Supreme Court. And recent press reports indicate that Attorney General John Ashcroft will soon leave his post. Miguel Estrada would be an inspired choice for the S.G.'s position, and Eleventh Circuit recess appointee William H. Pryor, Jr. would be a fine choice for Attorney General (especially if getting Democrats in the U.S. Senate to agree to drop their filibusters of current U.S. Court of Appeals nominees proves unsuccessful).

The individuals whom President Bush is likely to nominate and confirm to the federal courts during his second term will differ greatly from the nominees whom a President Kerry would have put forward. That is how the system works. But between a judicial nomination and confirmation to a lifetime position on the U.S. Courts stands the U.S. Senate. Unless the White House is able somehow to overcome the issue of judicial filibusters, the Republican retention of the Presidency and expansion of majority in the U.S. Senate may not seem in retrospect as important as many now view it to be.

This article is reprinted with permission from the November 8, 2004 issue of The Legal Intelligencer © 2004 NLP IP Company.