The Magazine

Get It Right

From the November 13, 2004 issue: Now that Bush has won a second term, what he should look for in his first Supreme Court nominee

Nov 22, 2004, Vol. 10, No. 10 • By TERRY EASTLAND, FOR THE EDITORS
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

YES, the president must get this decision right. He must take real care with the nomination of a new Supreme Court justice. He must name someone impressive who shares his judicial philosophy. And he must get that nominee confirmed.

It's important to say this now because the likelihood of a vacancy by the end of the current term or earlier, perhaps even next month, has markedly increased with the news that Chief Justice William Rehnquist, who is 80 and has served since 1971, has thyroid cancer and is undergoing both radiation treatment and chemotherapy.

Other justices may well also retire during Bush's second term. Both John Paul Stevens, 84, and Sandra Day O'Connor, 74, are older than retiring justices usually have been, and their length of service (29 and 23 years) exceeds the average during the last century. And it's not unthinkable that another justice or two might leave the bench. After all, of the remaining justices, only Clarence Thomas is younger than 65. Meanwhile, consider this: The Court has now gone more than 10 years without the subtraction and addition of a justice--a stretch of years without a change in justices exceeded only from 1812 to 1823. It's about time, as they say.

Of course, no one knows (or if he or she does, he or she isn't telling) when anyone might be stepping down. But an administration must be prepared for vacancies, and you can bet that the Bush administration long ago drew up a list and sorted through the pros and cons of more than a few potential nominees.

Still, the urgency of getting the first nomination right is hard to overstate, if only because the president may have only one vacancy to fill before he retires. And for obvious reasons, it is on the Court's center seat, Rehnquist's, that the president must focus.

Who should the nominee be? Let's assume for every lawyer on the president's shortlist a distinguished legal career, the right temperament for judging, and good character. The remaining but transcendent question involves judicial philosophy. During the campaign the president reiterated his desire to pick judicial conservatives. There are varieties of judicial conservatism, to be sure. Yet generally speaking, this approach to judging takes seriously the original intent of the Constitution, and thus resists the creation of rights not found in its text or history and defers to the decision of popularly elected branches. Also, it respects the structural dictates of the Constitution--most notably those involving the separation of powers and federalism.

A non-exhaustive list of outstanding lawyers in all other respects qualified for the High Court who may fairly be described as judicial conservatives includes a number of federal appellate judges: Sam Alito of the Third Circuit, J. Michael Luttig and J. Harvie Wilkinson III of the Fourth Circuit, Edith Jones of the Fifth Circuit, Danny Boggs of the Sixth Circuit, Michael McConnell of the Tenth Circuit, and John Roberts of the D.C. Circuit. And it includes at least three non-judges: Sen. Jon Kyl of Arizona and two first-term Bush appointees--former deputy attorney general Larry Thompson and former solicitor general Theodore B. Olson.

In choosing a nominee, the president undoubtedly will consider some other factors. One, in the special case of nominating a leader for the Court, concerns the very nature of the position: The chief justice is chief justice not of the Supreme Court but of the United States. As such, he has supervisory responsibility for the entire federal judiciary and often a higher visibility than his colleagues. And inside the Court, a dexterous chief can influence the Court's direction, maybe not by much, but still by something. Then, too, there is age. The younger the new justice, the longer the individual's service and influence might be.

Finally, there is the nature of the nominee's legal experience. The Court is dominated by former circuit judges. The appeals courts are an obvious place to look for new justices. But good justices can come from other places--indeed, Rehnquist was in the Justice Department when President Nixon appointed him to the Court. Right now the Court has no one with prior experience as broad as Thompson, who has been a defense lawyer and also a federal prosecutor, a U.S. Attorney, a corporate attorney, and also deputy A.G., in which capacity he ran a Justice Department with a budget of $25 billion and 110,000 employees forced to quickly adjust its priorities in the wake of 9/11. By the way, that Bush nominated Alberto Gonzales as attorney general and not Thompson suggests to us that the president sees Thompson, as he should, as a serious prospect for the Court.

Whatever else Bush may take into account in selecting the first nominee, he must make sure that he picks a bona fide judicial conservative. Not only might the president not get another chance to nominate a justice, but it would make no sense to replace a judicial conservative, which Rehnquist most demonstrably is, with someone whose philosophy of judging is the opposite or, more likely, indiscernible because undeveloped. (Repeat after us: No more Souters--but also no more O'Connors.) Furthermore, a judicial conservative can be confirmed. Those Senate Democrats who insist on maintaining the Court's current ideological balance cannot credibly object to a successor to Rehnquist who holds the same philosophy as he. And moderate Senate Democrats can tell liberal interest groups that, after all, because this is already a "conservative seat," they can't be expected to go up against a recently reelected president on this nomination.

The president should be willing to expend in behalf of his choice some of that political capital he talked the other day about having earned. But the stars are well aligned for his first nomination: The president has every opportunity to select a stellar constitutional jurist, and to get him (pretty easily, we suspect) confirmed. Just do it.

--Terry Eastland, for the Editors