The great court shuffle that may not come
Despite speculation about high court retirements, continuity may prevail.
WASHINGTON — Nothing concentrates Washington minds quite like speculation about an imminent departure from the US Supreme Court.
And for good reason. Not since 1823 has the same lineup of justices presided for so long - almost nine years. In a way, the well-defined divisions and alliances among the current nine justices provide a predictability often lacking in the other branches of government.
But alter that balance of power by one or two votes, and watch out. Some of the nation's most contentious issues - including abortion, the church-state divide, civil liberties, and states' rights - could be at a tipping point.
With the nation as politically divided as the justices, liberals and conservatives see both the court and country at a crossroads. And they're gearing up for a fight.
But a funny thing happened on the way to World War III. It looks increasingly unlikely that any justice will soon leave, analysts say.
Some court watchers have long suggested it was a near certainty that Chief Justice William Rehnquist and perhaps Justice Sandra Day O'Connor would announce their retirements by late June. But other legal scholars have been just as sure that the justices are staying put. That view has gained momentum among court watchers in recent weeks.
"There is not going to be a retirement," says David Garrow, a legal historian at Emory University in Atlanta and longtime court watcher. He offers three reasons.
Mr. Garrow says a retirement announcement would have come sooner, in early May, to give the White House more time to fill the vacancy before the court's next term begins in October.
Second, he says, there have been no private hints from any of the justices that they might be stepping down.
And third, Garrow says, a retirement now would leave the court at a potential 4-4 deadlock in September, when the justices take up a crucial debate over the constitutionality of the McCain-Feingold campaign-finance law.
Other analysts point to reports that the chief justice has rehired his administrative assistant for another year and arranged for a new crop of law clerks.
Speculation over a possible retirement by Chief Justice Rehnquist or Justice O'Connor was sparked in large part by a historic truism at the high court. Retiring justices prefer to be replaced by someone with a similar judicial outlook. For lifelong Republicans like Rehnquist and O'Connor, that means retiring during a Republican administration.
The speculation was further fueled by the fact that the Republicans hold a 51-member majority in the 100-seat Senate, an advantage that could help speed a nomination out of the Judiciary Committee and onto the Senate floor.
But Senate Democrats are using filibusters to delay indefinitely some of the White House's appeals-court nominees. The Democrats would likely do the same to any high-court nominee they deem too conservative.
The willingness to resort to filibusters - which require 60 votes to end - is changing the dynamics of the judicial-nomination process in a fundamental way, legal analysts say. Senate Democrats have vowed to use a filibuster to prevent a floor vote if President Bush attempts to fulfill his campaign promise to appoint Supreme Court justices in the mold of conservatives Antonin Scalia and Clarence Thomas.
Some analysts say such obstructionist tactics may have prompted a justice or justices considering retirement to delay any decision until after the 2004 election, assuming Mr. Bush will win reelection and the Republicans will expand their Senate majority.
Meanwhile, conservatives are complaining that, contrary to the new approach adopted by Senate Democrats, Senate Republicans showed considerable deference to Ruth Bader Ginsburg and Stephen Breyer, President Clinton's two choices for the Supreme Court. The Republicans permitted floor votes even though conservatives disagreed with the nominees' views on the abortion precedent, Roe v. Wade, and other cases. Despite these personal policy differences, most senators acknowledged that both nominees were well qualified to serve as justices.
Justice Ginsburg won the support of all but three senators. Justice Breyer won confirmation with only nine votes cast against him. "It is hard to believe that the Democrats in the Senate today would deal as fairly with Bush nominees who were the equivalent of those two," says John Nowacki, director of legal policy at the Free Congress Foundation in Washington.
Recently, Senate Democrats, including Democratic leader Tom Daschle and Judiciary Committee members Patrick Leahy and Charles Schumer, have urged the White House to consult with the Democratic leadership about a future Supreme Court nominee. Such consultation could head off a bitter confirmation battle, they say.
Senator Schumer met with White House Counsel Alberto Gonzales on June 12 to discuss the confirmation process, but details of the off-the-record meeting have not been forthcoming. Mr. Gonzales, a Texan who is close to Bush, is himself seen as a top contender for a Supreme Court nomination.
In their meeting, Schumer underscored to Gonzales "the need for a consensus pick for a vacancy, one that can garner all 100 votes," says Phil Singer, Schumer's communications director.
Another unknown is whether any justices have discussed possible retirement plans with the White House, and whether the White House has urged any justices to stay put until after the 2004 election. Many in Washington assume the White House has made its preferences clear to conservative justices who may retire, calculating that a messy confirmation battle that highlights divisive social issues like abortion could hurt Bush's standing with moderate voters.
"What's discombobulating the White House is that the Democrats have maintained solidarity [in filibustering lower-court nominees] that was completely unexpected," says Ralph Neas, head of the liberal People for the American Way in Washington.
Even if conservatives find their opponents' hardball tactics exasperating, the Democrats have the right to behave this way. While the Constitution gives the president the power to nominate federal court justices, it is only "by and with the advice and consent of the Senate."
The Constitution leaves the criteria for Senate "consent" open to each member. Although there is a tradition of deference allowing a president to appoint like-minded justices to the Supreme Court, nothing requires senators to honor that. Instead, senators are within their constitutional powers to reject nominees who do not share their outlook on key issues.