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Supreme Court justices may not resign until election is settled in 2004

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  • James Nimmo
    Supreme Court justices may not resign until election is settled in 2004
    Message 1 of 1 , Jul 1, 2003
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      Supreme Court justices may not resign until election is settled in 2004


      Jul. 01, 2003

      Supreme Court justices may not resign until election is settled in 2004

      The Dallas Morning News

      WASHINGTON - (KRT) - Lawyers and journalists who packed the ornate Supreme Court chamber last week gasped when Chief Justice William Rehnquist solemnly announced a retirement:

      Court librarian Shelley Dowling had decided to call it quits.

      Court observers, interest groups, attorneys and protesters spent much of the just-finished term speculating that at least one justice - perhaps even the chief justice himself - would retire, sparking a brutal political war over President Bush's choice for a lifetime appointment. Instead, the expected fight - sharpened by last week's rulings in favor of affirmative action and gay rights - remains on hold.

      And barring a sudden death or disability, it could stay that way for a while. Analysts questioned whether any justice would voluntarily step aside on the cusp of a presidential election, especially given the court's role in the disputed Bush-Gore election of 2000.

      "If they're not going to do it this year, they're not going to deliberately throw open the argument in the middle of an election campaign," said Douglas Kmiec, dean of the law school at the Catholic University of America in Washington, D.C. "I think they know that would be institutionally harmful to the court."

      That doesn't mean, though, that the issue goes away until 2005. If anything, armies of activists are speeding their preparations for a confirmation battle in the Senate that will touch a plethora of hot buttons: abortion rights, gay rights, congressional rights, voters' rights, patients' rights, state's rights, gun rights, property rights. Plus, Democrats have signaled that they will use the composition of the courts as a campaign issue against Bush.

      And last week, once the clamor died down over rulings that supported affirmative action and gay rights, liberals and conservatives noted that any retirement would be crucial, given the one-vote margin of both landmark decisions.

      Lauding the decision to strike down the Texas anti-sodomy law, Democratic presidential candidate John Kerry said: "This ruling reminds us ��� why we must stand up against Bush administration attempts to add a radical appointee to the court who will roll back equal rights."

      Said the Rev. Louis P. Sheldon, chairman of the Traditional Values Coalition, on the same case: "We know now who our friends are and who to replace. This will energize our base. We do not have a court that recognizes Judeo-Christian moral standards."

      White House officials had said for weeks they didn't expect a Supreme Court opening. Some pointed out that the court set a special hearing on the new campaign finance law for September, and they did not expect any justice to leave and run the risk that such an important topic would be undecided with a 4-4 vote.

      And while some White House aides have thought about potential nominees, and how they might win confirmation, they are reluctant to discuss it at the moment.

      "Unless there's an announcement, there is no vacancy," said Press Secretary Ari Fleischer.

      Numerous interest groups are not so reticent, having spent years preparing for the next Supreme Court fight, or, in the interim, a presidential election.

      Supporters of abortion rights have financed television commercials depicting an ominous future day on which Bush appointees have reversed the Roe vs. Wade decision. Abortion opponents announced a grassroots campaign they dubbed Project Rosebud.

      Democratic senators have sent letters to President Bush, urging him to avoid a grueling nomination battle by consulting them on potential nominees. Republican senators are working on changes to filibuster rules that would make it harder for Democrats to block a Bush nominee as they have two of his circuit court selections.


      The court hasn't had a new justice since 1994, the longest any set of justices has served together in modern times. Four of them - Justices Rehnquist, John Paul Stevens, Sandra Day O'Connor and Ruth Bader Ginsburg - are 70 or older.

      "We have to be prepared," said Kate Michelman, president of NARAL Pro-Choice America. "We will have vacancies occur, and we probably won't just have one. We will have several, in fairly rapid order, and they will seriously change the character of the court."

      James Bopp, general counsel for the National Right To Life Committee, said his organization would add any high court vacancy to its "aggressive lobbying operation" - whenever it occurred.

      "Retirements are so personal, it's really hard to make predictive statements," Bopp added.

      Organizations spend much time researching potential nominees, studying their statements, writings, and rulings - and, in some cases, their personal lives.

      Few people expect an easy process, no matter who decides to retire. The chief justice's role is always an important one; Stevens is considered by some to be the court's leading liberal.

      Then there is the court's key swing vote, O'Connor. She is often the fifth vote with the court's conservatives: Justices Rehnquist, Anthony Kennedy, Antonin Scalia and Clarence Thomas. Other times, she joins liberal Justices Stevens, Ginsburg, David Souter and Stephen Breyer.

      "As she is fond of saying, her vote is only one vote," said Tom Goldstein, who frequently argues before the court. "It's just that hers is the only vote that matters."

      In 81 cases decided this year, O'Connor was in the majority 76 times, far more than any other justice. She was the only justice who did not write a dissent.

      Perhaps more to the point, says Ron Klain, a lawyer for former Vice President Al Gore in the recount and a former Supreme Court clerk, O'Connor was on the winning side of all 13 cases decided by a 5-4 majority.

      "It's not only that she's a swing vote," said Klain, "her approach to cases - a narrow attention to the details of the matter at hand - has become the approach of the court."

      Said Goldstein: "If she were to retire, it would be thermo-nuclear warfare."


      Bush himself may also be an issue in the next nomination fight. Some liberal critics have even questioned his right to make a nomination, since he became president after the Supreme Court stopped the Florida recount. "No matter who Bush nominates, that person is going to face a difficult fight," said John Nowacki, director of legal policy for the Free Congress Foundation, a conservative organization. "It's really about preventing him from filling the vacancy."

      Nan Aron, whose Alliance For Justice has opposed several Bush nominations for lower courts, said Bush has probably already missed his chance for a smooth confirmation.

      "The time to nominate a Supreme Court justice is early on in one's tenure as president," she said. "It tends to be the time when a president is the most powerful and well-liked. As the years progress, a president tends to lose some popularity, prestige, and power."

      Election years are particularly dicey.

      "The conventional wisdom points to this being the year," Aron said. "If not this year, one assumes that Bush has to wait two years, and he may not be around then. But who knows?"

      Ultimately, only the justices, and they're not talking. Rehnquist, who spoke at a judicial conference Saturday, offered only a cryptic response to retirement questions.

      "You'll find out in due course," he said at the conference.


      �� 2003, The Dallas Morning News.

      Visit The Dallas Morning News on the World Wide Web at http://www.dallasnews.com

      Distributed by Knight Ridder/Tribune Information Services.


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      "Our Constitution was not intended to be used by any group to foist its personal religious beliefs on the rest of us."--Katherine Hepburn

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