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Partisans gear up for possible court vacancy
By Sean Loughlin
WASHINGTON (CNN) -- A battle is brewing in the nation's capital. The troops are fired up, the money is pouring in and the rhetoric is on the rise. The focus of the pending fight? The Supreme Court. There isn't even a vacancy, let alone a nominee, but Democrats and Republicans, liberals and conservatives believe it's possible that one justice of the nation's highest court will step down this summer. The stakes, all sides agree, are enormous. With a court that often issues rulings on narrow 5-4 majorities, vacancies could sway public policy on issues ranging from abortion, school prayer, privacy and civil liberties. Although seven of the nine sitting justices were nominated by Republican presidents, many decisions by the court are issued by 5-4 or 6-3 margins. Moderate conservative Justice Sandra Day O'Connor often is the decisive vote, as she was this week with the decision upholding the University of Michigan law school's affirmative action admissions program. In preparation for any vacancy, politicians and activists are getting ready for the fight they believe appears certain to follow. "We have to run all the traps because once it's a sure thing, to put it frankly, all hell will break loose," said Sean Rushton, executive director of the Committee for Justice, a conservative group that is raising money to support President Bush's nominees to the federal bench. "If you haven't got your resources lined up, it's a little late to start when a vacancy arises." There's good reason to believe that one of the Supreme Court justices may retire this summer. It has been about nine years since the last high court vacancy, the longest such stretch in 180 years. This also is the last year before the 2004 presidential election. Many justices have retired under an administration from the party of the president that nominated them. A justice appointed by a Republican president might want to retire before Bush's first term expires. Retirement announcements on the court are traditionally announced in June. Doing so allows the Senate to hold confirmation hearings before the court reconvenes in October. Senate role left ambiguous
Speculation about a retirement has centered on Chief Justice William Rehnquist, 78, O'Connor, 73, and Justice John Paul Stevens, 83. None of the three has spoken publicly about their plans. "If I really had to bet the farm on whether there's going to be a retirement, I wouldn't know how to bet," said Sen. Patrick Leahy, the top Democrat on the Senate Judiciary Committee, which would hold hearings on any Bush nominee. But Leahy is certainly acting as if a retirement is a strong possibility. He recently wrote two letters to the White House, urging the administration to engage in "meaningful consultation" with the Senate on possible nominees. The White House has dismissed such calls for consultations as premature, and rejected a suggestion this week by Senate Minority Leader Tom Daschle that Bush meet with Democrats before filling any Supreme Court vacancies to avoid a potentially bruising confirmation fight. "Unless and until there is a vacancy, this is idle chitchat," said White House spokesman Ari Fleischer. The Constitution empowers the president to nominate Supreme Court justices "with the advice and consent of the Senate." Various scholars and politicians have interpreted the Senate role differently. Some see it as limited, essentially amounting to an up-or-down vote and perhaps a hearing to review a nominee's qualifications. Others assert the Senate's role is equal to that of the president's nominating powers and that the "advice" reference in the Constitution ought to mean close consultations between the two branches. War chests continue to grow for possible nomination battle
Signs of the potential nomination battle are everywhere. • The Democratic National Committee's Web site features "Supreme Court Countdown" with a color-coded advisory system similar to the terror alert system. "We're using some very strong metaphors to get through to the American people," said Debra DeShong, the DNC's communications director. "This is a very serious issue." • The Naral Pro-Choice America Foundation aired a series of television advertisements in June highlighting the court's importance in abortion rights • Presidential nephew George P. Bush -- a University of Texas law school graduate and the son of Florida Gov. Jeb Bush -- will be the star attraction at a June 27 fund-raiser in Washington for the Committee for Justice. Dubbed the "Filibuster Buster," the event, Rushton said, is designed to "raise awareness about the struggle for the federal courts." • On Capitol Hill, the press releases are flying as lawmakers consider the possibility of a Supreme Court vacancy. For example, Sen. Charles Schumer, a liberal Democrat from New York, recently released his list of possible nominees, a gesture not likely to win much attention at the Republican White House. Conservative and liberal groups are highlighting a number of issues in appeals to supporters for money. "The fund-raising has to be done in order to conduct the education efforts, so people know what's at stake," said Judith Schaeffer, deputy legal director for the liberal People for the American Way Foundation. "It's not hurting us," said Rushton, of the Committee for Justice. Neither group wanted to talk specifics about how much money they've raised, but political observers believe various interest groups are preparing multimillion-dollar war chests. Both sides say they don't want a fight yet both sides act as if that is inevitable. Conservatives say they're playing catch-up to liberal groups, whom they blame for injecting a new level of partisanship into the judicial nominating process. Many conservative activists are still licking their wounds from the bruising battle over Robert Bork, a conservative 1987 Reagan nominee who was rejected by the Senate. And they say liberals launched the first shot across the bow by filibustering two Bush nominees to lower federal courts -- Miguel Estrada and Priscilla Owen. "There's a level of hyperbole and stridency that I haven't seen before," said James Swanson, editor in chief of the Supreme Court Review for the Cato Institute, a libertarian interest group. But liberals and Democrats say Bush is gearing up for a fight because the White House has shown little interest in consulting with the Senate. Leahy said how the battle plays out rests with the administration. "Ultimately, it's the president's choice," he said.
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