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Beyond Rock, Paper, Scissors ...

Choosing a new chief justice is a complex game

February 06, 2005|Joan A. Lukey | Joan A. Lukey, former president of the Boston Bar Assn., writes frequently on legal matters.

With wounds still raw from an angry presidential election, this is not an ideal time to nominate a new chief justice of the United States. But that's what President Bush will almost certainly have the opportunity to do. And soon.

Chief Justice William H. Rehnquist is 80 years old and battling cancer. On Jan. 20, he administered the presidential oath of office for the fifth time, but all indications are that he will retire soon. When that occurs, a new chief justice will be selected for the first time in almost two decades.

The president, who has demonstrated a pronounced ideological bent in his judicial selections, must now navigate the nomination process with considerably greater care. This is not for the sake of conciliation but because his lame-duck status will become crippling in a couple of years or so, and the momentum of his agenda cannot afford a prolonged filibuster.

He could avoid that distraction simply by honoring his promise in the debates to avoid a "moral values" litmus test in selecting Supreme Court candidates. But that's not going to happen. The president has repeatedly demonstrated an intention to populate the federal bench with judges who mirror his conservative social values.

The Republicans, however, do not have the 60 votes necessary to defeat a filibuster. He therefore needs a plan to circumvent the talkathon strategy. Most likely, this will take the form of giving with one hand while taking away with the other by putting forth two candidates at once. Ronald Reagan employed a packaging strategy in 1986, nominating a new chief justice from the ranks of the associate justices, and a new associate justice to replace the one elevated. But he failed, at significant political cost, to recognize the need for compromise. By nominating a conservative but relatively centrist chief (i.e., a conservative who occasionally shifts toward the center, including on social issues), Bush will earn kudos, and political capital, for his restraint. With that additional capital, he can invest in his "values" agenda by filling the associate-justice vacancy with a staunch social conservative, a move that has a much more profound, and longer-lasting, effect on the ideological balance of the court.

The irony is that the president can accomplish this political sleight of hand while endearing himself to both of his key constituencies. He can please the neocons (whose issues revolve primarily around foreign policy, the economy and the role of the federal government) with his selection of the new chief. And he can please the theocons (the theological conservatives, whose issues are self-explanatory) through the selection of the new associate justice.

In essence, the president can achieve his objective by applying a new litmus test to the selection of the chief justice.

A high-priority agenda item for this administration and its neocon supporters is a reallocation of the balance of power by appropriating powers from the other two branches of government. When the White House successfully broadens the categories that are deemed to be "executive powers" under the Constitution, it insulates its conduct from interference by either Congress or the courts. In other words, it creates a stronger presidency.

If the president is serious about moving forward with this aspect of his agenda expeditiously in the first two years of his second term, he will nominate a chief justice who views "executive powers" expansively. His best odds of doing that successfully are to select the new chief from the existing court. The sitting justices have addressed this issue several times recently in Cheney vs. United States District Court and Hamdi vs. Rumsfeld, so nasty surprises in future decisions are unlikely. This, of course, dovetails nicely with the overall dual-appointment approach.

Realistically speaking, the pool of candidates is far smaller than the full complement of the court. The president will not consider selecting a justice nominated to the court by a Democrat, which knocks Stephen G. Breyer and Ruth Bader Ginsburg out of contention. Nor will the president forgo a once-in-a-lifetime opportunity to shape the court's future leadership by tapping a justice who is already over the age of 70. Justices John Paul Stevens (84) and Sandra Day O'Connor (74) are therefore also probably out of the running.

That narrows the pool to justices Antonin Scalia (68), Anthony M. Kennedy (68), David H. Souter (65) and Clarence Thomas (56), all Republican appointments, but covering a broad range of philosophical views.

When one applies the balance-of-powers litmus test to this pool, the results are somewhat surprising.The key is in two decisions handed down in June 2004:

* In Cheney vs. United States District Court for the District of Columbia, the court accepted the administration's contention that it was entitled to shield its documents regarding the president's energy task force in secrecy, without judicial review.

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