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ELECTION 2004 / THE NATION

Courts Are Poised to Take a Hard Right Term

Conservatives say the president should use his victory to push for changes on social issues. A Supreme Court vacancy is likely.

November 04, 2004|David G. Savage | Times Staff Writer

WASHINGTON — President Bush's victory, propelled by socially conservative voters, gives him a historic opportunity to move the federal courts to the right on issues such as religion, abortion and gay rights.

In his first term, Bush had no chance to fill a vacancy on the Supreme Court. And Senate Democrats -- led by Minority Leader Tom Daschle of South Dakota, who lost his reelection bid Tuesday -- blocked some of the president's most conservative nominees to the U.S. courts of appeal.

Now, however, a reelected Bush is likely to have a chance soon to nominate a new chief justice of the Supreme Court. And he can send more conservative judicial nominees to the Senate with reasonable confidence that a strong Republican majority will confirm them.

Already on Wednesday, conservative activists and anti-abortion leaders were encouraging Bush to use his mandate to seek fundamental changes in the law, including reversing the Roe vs. Wade Supreme Court decision that legalized abortion.

For The Record
Los Angeles Times Tuesday November 09, 2004 Home Edition Main News Part A Page 2 National Desk 1 inches; 52 words Type of Material: Correction
Court nominee -- An article Thursday in Section A on how President Bush's victory could affect the federal courts said California Supreme Court Justice Janice Rogers Brown was nominated to the U.S. 9th Circuit Court of Appeals. She was nominated to the U.S. Court of Appeals for the District of Columbia Circuit.

"The moral conservative and religious voter turned out in droves and has proven to be the backbone of the Republican Party," said Troy Newman, president of Operation Rescue. "Mr. President, you have been given a mandate to end abortion in our nation by the American people who cast their votes for you."

Social conservatives have a clear agenda for the courts that goes beyond abortion. They would like more public support and recognition for religion, for example.

Early next year, the Supreme Court will consider whether cities and counties -- and perhaps schools -- may put monuments to the Ten Commandments in public buildings.

Conservatives also want to block the gay rights movement.

Last year, the Supreme Court gave gays a major victory when it struck down a Texas law that made sex between homosexuals a crime and said gays and lesbians were entitled to "respect and dignity" in their private lives.

Justice Antonin Scalia, in a dissent, accused the majority of adopting the "so-called homosexual agenda" and paving the way to the legalizing of same-sex marriages. A month later, the Massachusetts Supreme Court did just that in a 4-3 ruling.

In reaction, Bush proposed a constitutional amendment to prevent "activist judges" from authorizing same-sex marriages. On Wednesday, conservatives were celebrating that voters in 11 states had adopted measures that defined marriage as the union of a man and a woman. Eight of them also prohibited civil unions for gays and lesbians.

"Mr. President, lead this nation in the path of righteousness and heaven will smile upon you," said Jan M. LaRue, chief counsel for Concerned Women for America. "Stand strong for the unborn ... stand in defense of marriage against those who would corrupt it with counterfeits, and give us judges who will honor the rule of law."

Despite his solid victory, it is not a given that Bush will seek dramatic changes in the law. Last year, the president disappointed some conservatives when he refused to take a strong stand against colleges using race-based affirmative action when the issue was before the Supreme Court.

It also is not clear that Bush can win major changes quickly through the courts.

The Supreme Court shifts slowly and has often disappointed presidents who hoped their appointees could transform the law. Although Chief Justice William H. Rehnquist, 80, is battling thyroid cancer and is likely to retire soon, none of the other aging justices has hinted at wanting to step down. Since Rehnquist has been the court's conservative leader, Bush would not change the court's ideological balance by naming a conservative to fill his seat.

Six of the current nine justices have voted in favor of the right to an abortion. The Senate Democrats, though weakened, also remain an obstacle.

Bush and the Democrats battled over judges during his first term. The president said the Democrats were seeking to block qualified nominees simply because they were conservative. The Democrats countered that some of his judges were right-wing ideologues and deserved to be blocked. Overall, Bush had 201 judges confirmed during his first four years in office, a better record than President Clinton had in the prior four years.

But the Democrats used the filibuster rule to prevent a vote on 10 of Bush's nominees. They included California Supreme Court Justice Janice Rogers Brown and Los Angeles lawyer Carolyn B. Kuhl. They were nominated for the U.S. 9th Circuit Court of Appeals.

Bush may well renominate the prospective judges who were blocked last year and challenge the weakened Democrats to try it again.

Viet Dinh, a former Justice Department official who helped shepherd Bush's nominees through the Senate, said the Democrats would stand against the president, despite the election results. "If anything, it only galvanizes the opposition to be more obstructionist," he said.

Nan Aron, president of the liberal Alliance for Justice, said she agreed. "It will be tougher, but I don't think their resolve will be weakened. This is one of the few issues that united Democrats," she said.

But some Republican leaders are just as determined in insisting that the president's nominees deserve a vote in the Senate. Under the filibuster rule, it takes 60 votes to end the debate and allow a vote. But if the filibusters resume, look for Republican leaders to seek a change in the Senate rules to more easily break a filibuster and allow a confirmation vote to proceed.

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Times staff writer Richard B. Schmitt contributed to this report.

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