Rumors of a Third Nominee to the Supreme Court

Posted: Feb 18, 2006 12:53 PM

When you write about things political in Washington you pick up every rumor imaginable. Most of them are bogus, initiated by someone who has an axe to grind. I recall vividly being in the office of Senator James Danforth (“Dan”) Quayle (R-IN) within a few months of Republicans’ having taken control of the Senate for the first time since President Dwight D. Eisenhower’s first term. Quayle was on the phone with his wife, Marilyn, who had picked up rumors of a huge sex scandal which supposedly was going to bring down the Republican Majority. Quayle was making light of the situation. Mrs. Quayle would have none of it.

While it shook up the newly minted Senate Majority, with some news outlets going so far as to print pictures of twelve Senators supposedly involved, it turned out to be nothing. A few Senators were at a golf outing where there were a few attractive ladies. There never were credible allegations about what supposedly happened at this outing. Quayle was assuring his wife that he had no female companion on that outing. The whole thing was born of rumors. The rumors persisted for a few weeks and then when nothing came of the whole business, even the news media, which had no use for the Republican Majority, quietly had to drop the whole business.

That is what is likely to happen with another rumor which absolutely has swept the Nation’s Capitol since the swearing-in of Justice Samuel J. Alito, Jr. as the 116th Associate Justice. That rumor is that President George W. Bush will have another vacancy on the Supreme Court when the term ends this coming June.

One Senator claims he has specific knowledge that the vacancy is coming. The speculation revolves around 85-year-old Associate Justice John Paul Stevens. Stevens, as the rumor is embellished, supposedly let it be known that he is impressed with the caliber of Chief Justice John G. Roberts, Jr., as well as with that of Associate Justice Alito. Stevens supposedly told the White House that even though he is a Rockefeller Republican (he was President Gerald R. Ford’s only Court appointee during the period when Nelson A. Rockefeller was Vice President) he believes the Court would not move radically to the right should he depart.

My colleague, Marion Edwyn Harrison, Esq., has been as close to happenings at the Supreme Court as anyone outside the Supreme Court and he says he sees no evidence to justify the vacancy rumor. By the way, Harrison was correct for several years as to a dozen or more rumors that the late Chief Justice William H. Rehnquist was going to retire. I put the question to Senate Majority Leader William H. (“Bill”) Frist, M.D. (R-TN) during his visit to the Free Congress Foundation last week. Frist said he has heard absolutely nothing to substantiate this rumor. Frist hastened to add, however, if a vacancy were to occur at the end of June that ninety days later it would be possible to be looking at an up-or-down vote for a new Associate Justice. The Majority Leader also made it clear that he would not tolerate a filibuster of such a nominee and would exercise the so-called Constitutional Option if Senators insisted upon trying to block an up-or-down vote by a simple majority.

Even though there is no credible evidence that the vacancy will occur while Republicans still have a 55-45 advantage in the Senate, let us grant the rumor mongers their due and stipulate that a vacancy will occur at the end of this term of the Supreme Court. First, President Bush would have to resist the temptation to play gender or ethnic politics in his appointment. That is not to suggest that there are not able women or Hispanics among the stable of potential appointees from which he would draw. What I am suggesting is that the President should choose only the highest caliber nominee, as he obviously did in selecting Roberts and Alito. They so outclassed the Senators who grilled them for days that opposing them became a political liability. (After nominating Alito the President can be forgiven for the Harriet Meirs nomination. I am glad the lady had the good sense to withdraw as she would have been emasculated by the Senate Judiciary Committee had her nomination gotten that far.)

So let us presume that faced with another vacancy, the President would choose someone of the caliber of Roberts and Alito. That someone not only would need to have superior knowledge of the law but also would need the temperament of an angel to endure the insults, smears, distortions and half-truths dished out by several liberal Senators on that Committee. No matter how great the temptation to let some of these Senators have it, the nominee should appear calm and collected, understanding that the reward at the end would be a seat on the Supreme Court.

Then the role of the outside groups would come into play. In the case of Liberals, this vote would be THE test of party loyalty. Judge Alito received four Democratic votes. A new nominee almost certainly would receive only one in the event of a third vacancy. Only Senator E. Benjamin (“Ben”) Nelson (D-NE) likely would resist party pressure and would support the President’s nominee, knowing that if he failed to do so, he well could get defeated in the General Election this November. It would be demanded of the other Democratic Senators that they support a filibuster and do everything possible to block the nomination. They would end up doing so under the threat of dried-up re-election funds.

Look at what happened to Justice Alito. Various Democratic Senators, such as Dianne Feinstein, of California, declared that there was no need for a filibuster. But as soon as Senator John F. Kerry, of Massachusetts, initiated one, she was the first to line up to support it. The same with Senate Minority Leader Harry M. Reid, of Nevada. He saw no justification for a filibuster on a prominent Sunday Talk show one week and was voting against cloture to support a filibuster the next week. No apology. No explanation. The far left now so controls the Democratic Party that it is in a position to make demands of even its senior Senators.

On the Republican side, Alito lost one, Senator Lincoln D. Chaffee, of Rhode Island. If there is another vacancy, and assuming the President nominates someone who has doubts about Roe v Wade, not only will Chaffee be gone but the Maine twins, Senators Susan M. Collins and Olympia J. Snowe, almost will be lost as well. That would bring the Republican number down to 52.

There always is the possibility, too, that the Chairman of the Judiciary Committee, Senator Arlen Specter, of Pennsylvania, could find fault with the nominee and while he would keep his promise to vote the nominee to the Floor of the Full Senate, he might vote against the nominee there. That would leave Republicans with just 51 votes, 52 if Nelson supported the nominee. A 52-48 confirmation would put that nominee in line with Justice Clarence Thomas, who was confirmed by that margin.

What outsiders who look at voting records don’t comprehend is the piling-on effect. The vote against Kerry’s filibuster appeared overwhelming. My sources tell me that the Caucus came within two votes of finding the 41 votes necessary to sustain a filibuster. A shift of just two votes and Majority Leader Frist would have been looking at deploying the Constitutional Option for Alito rather than for the next nominee. Once it is determined that the vote is going a certain way (in this case they did not have enough votes for a filibuster) then all sorts of Senators who would have supported a filibuster pile on to end debate. So long as they knew the votes for cloture were there they piled on to make themselves look more reasonable. Even the usually accurate talk show host Rush Limbaugh saw that large vote to end the filibuster as a repudiation of Senators Kerry, Kennedy and the others. It was not. It was a bow to reality.

Anyway, as one long-time Senate staffer said to me, “If you think what the outside groups did in the Alito nomination was tough, it was like a kindergarten class compared to what is next.”

Conservatives likewise would require unprecedented resources to hold Republican Senators in line and to assure the votes were Frist to change the rules in the middle of the session.

If the rumor turns out to be true, then hope and pray the vacancy comes at the end of June. The President and his party might be good for one more nomination and confirmation. If, as many now believe, the Democrats take over the Senate this November, or even if Republicans are reduced to a 51-49 majority, the chance of getting one more good, solid nominee such as the two the President already has given us almost certainly is down the drain.