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September|October 2004
The Scalias Court By Stephen B. Presser
Kerry's Even Keel By David Strauss
Dull and Duller By Mark Tushnet
The Passion Of Father Paul Shanley By JoAnn Wypijewski
Litigation By Loan Shark By Daniel Brook

Dull and Duller

Realistically, neither Bush nor Kerry could get an ideologue through the Senate. Don't base your vote on the consequences for the court.

By Mark Tushnet

IT'S ONE THING FOR A PRESIDENT TO NOMINATE HIS IDEAL CANDIDATE for the Supreme Court. It's quite another to get that person confirmed. The Senate elected this November is almost certainly going to be closely divided between polarized parties, each embittered about its opponent's past behavior on judicial nominations and likely to place substantial constraints on determining who actually gets on the court. A justice nominated by George W. Bush and confirmed by the Senate will be somewhat more conservative than a justice nominated by John Kerry and confirmed by the Senate. Beyond that, there's not much to say. The differences are going to be smaller than partisans on either side expect, and calculations that we can't foresee will affect the politics of nomination and confirmation.

It's easier to describe what a President Kerry would do. The Democratic Party doesn't have a vision on the Constitution broader than discrete positions on subjects that matter to the party's important constituencies. A Kerry nominee would not vote to overturn Roe v. Wade. Until last year, the only other "Democratic position" was that affirmative action was constitutional, but the court itself took that issue off the table for long enough that it won't feature in nomination and confirmation politics over the next few years.

A Kerry nominee might think that the Rehnquist Court's restrictions on national power in the name of federalism are bad interpretations of the Constitution. During the confirmation process, though, the mantra "Follow the law, don't make it" would lead nominees to say that they strongly support stare decisis—good for the Democrats on Roe v. Wade, bad for them on the federalism decisions. Justices aren't bound by what they say at their nomination hearings, at least not in any formal sense. But as honorable people, they are likely to stick with what they say there, limiting their abilities to reject Rehnquist Court precedents.

President Bill Clinton toyed with the idea of bucking the recent trend of elevating a sitting federal judge by nominating a person with substantial political experience to the Supreme Court, like then-Governor Mario Cuomo of New York. But he decided that it wasn't worth spending the political capital that would be needed for such a nomination not to founder. A decade later, the confirmation process would be even more difficult for a President Kerry. It would confine his choices to sitting judges—almost certainly sitting federal appeals judges appointed during the Clinton presidency—and the most notable characteristic of those judges is how cautious they have been. The activists on the Ninth Circuit, the bête noire of conservatives, are mostly appointees of Jimmy Carter or even, in the recent Pledge of Allegiance case, Richard Nixon. It's hard to come up with anything truly controversial that Clinton's nominees have done. They may have to be cautious partly because they are lower court judges under the Supreme Court's thumb. Still, promotions to the Supreme Court do not seem to have liberated either Ruth Bader Ginsburg or Stephen Breyer.

A President Kerry wouldn't have to satisfy any constituency that cared about a new Democratic constitutional vision. But he would have to satisfy other constituencies. When you look at the Democratic coalition, you get a sense of whose nomination would satisfy its members. The most obvious candidate for promotion to the Supreme Court is Second Circuit Judge Sonia Sotomayor, a 50-year-old Hispanic woman appointed to the federal district court by the first President Bush and to the court of appeals by Clinton. From a political point of view, it's hard to imagine a better nominee. Fearing charges of racism, or at least obstruction of civil rights progress, even highly partisan Republicans in the Senate would have a hard time campaigning against her.

Maybe Kerry wouldn't nominate Sotomayor, but the process of identifying potential Democratic nominees is reasonably clear: Roe v. Wade must stand, but otherwise no strong constitutional vision is required; look for a sitting judge, preferably a federal judge; look for someone with no strong track record that Senate Republicans can attack; and find someone whose nomination will satisfy some important Democratic constituency other than the one that cares about Roe v. Wade. You end up with someone demographically interesting, but probably substantively bland.

A RE-ELECTED PRESIDENT BUSH would face a different, but not much less constraining, set of political problems, and he too would probably produce a bland nominee. There's a chance that he would extend to his choice of a Supreme Court justice his aggressiveness in promoting the Republican constitutional agenda, particularly if re-election bolstered his sense of having a mandate from the American people. But the Democrats in the Senate would do their best to block his nominee, as they have done quite effectively with Bush's strongly conservative candidates for the courts of appeals.

Unlike Democrats, Republicans do have a constitutional vision, nurtured over the past 20 years and, as Professor Dawn Johnsen of the Indiana University School of Law has shown, embodied in guidance documents prepared by the Reagan Department of Justice. Their constitutional vision is unsurprising: limited national power relative to the states, a strong president (as long as he's a Republican), strong protections of property rights, encouragement of interactions between religion and government—and, of course, overruling Roe v. Wade.

That last one would present a re-elected Bush with his biggest problem. Anyone who's been prominent in Republican legal circles—which means, all of the people whose names are tossed around by people inside the Washington Beltway as possible Supreme Court nominees—has had to take some public position against Roe v. Wade. And being against Roe v. Wade is close to a death knell for a Republican nominee in the Senate. Clarence Thomas's claim when he was before the judiciary committee in 1991 that he had never debated Roe v. Wade didn't fool anyone, but future Republican nominees aren't going to have even the fig leaf that Thomas placed over his views.

The Senate Democrats showed their toughness in their filibusters against court of appeals nominations during the current Bush Administration. A President Bush in his second term might be willing to bear the high political costs of trying to break a filibuster, or the equally high costs of giving someone a recess appointment to the Supreme Court. Still, while you can never tell how political calculations will turn out, the odds are that the president's political advisers would counsel him against trying too hard. A good strategy might be to nominate someone with strong conservative credentials, attack the ensuing filibuster, and then withdraw the nomination, with an impeccable and slightly less conservative nominee waiting in the wings. All of which means that it might be better to be the second person on the list of potential Bush Supreme Court nominees than to be the first.

The first President Bush meant to solve a parallel set of problems by nominating a "stealth" candidate, David Souter. But if Thomas's nomination taught liberals a lesson, Souter's did the same for conservatives. They won't be fooled again by back-channel assurances that a person with no visible public record on the issues they care about is reliable.

The only way they would let a supposed stealth candidate through would be if they were confident about her views. But, knowing that, liberals would be particularly wary about these candidates. That's a recipe for "Borking" the nominee. Democrats would search for something discrediting in the nominee's personal life, and would magnify trivialities in the nominee's public record, treating minor decisions as foreshadowings of ones more threatening to the values Democrats think Americans care about.

Here we have an intriguing political strategy for a second George W. Bush administration. Nominate a strong conservative, take a filibuster, and use it to tar Democrats with obstructionism. Then go through the motions of trying to break the filibuster before withdrawing the nomination and coming up with a stealth candidate who seems reliably conservative. Then watch the Democrats "Bork" the nominee and discredit themselves with centrists. The key flaw is, again, the Souter problem: The president's men may find a stealth nominee who seems reliably conservative, but they won't know for sure whether she is until it's too late.

On the whole, though, the two-step strategy seems a pretty good bet for the Republicans. What it means is that we can't identify the serious Republican candidates who have a chance for actually getting on the Supreme Court. All we can say is that they would be more conservative than Democrats would like, but less conservative than activist Republicans would prefer.

Of course, political circumstances can change dramatically. Maybe our next president will be elected in a landslide, maybe one party will have a huge success in this year's Senate races, maybe unanticipated constitutional issues (like the president's power to order torture?) will dominate public attention when the next nomination occurs. But the way things look now, you should support whomever you want for president and not count on your vote helping to determine the fate of the Supreme Court. The politics in the Senate make it likely that a newly appointed Democratic Supreme Court justice would look a lot like a newly appointed Republican one.

Mark Tushnet, a professor at Georgetown University Law Center, is the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law (W. W. Norton, forthcoming, January 2005).

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