News Column

Surprising Tilt Ahead For the High Court

January 7, 2003

Dean Scott

Kiplinger Business Forecasts, Vol 4 -- Odds are 2003 will bring a shake-up to the U.S. Supreme Court with the retirement of Chief Justice William H. Rehnquist possible as early as midyear. That would give President Bush a chance to pick his first Supreme Court justice and to make history with his choice of a replacement.

Regardless of the president's selection, the pro-business tilt of the Court won't change much. The Bush White House can be counted on to select a nominee with a conservative record on business issues.

Still, it's hard to envision a candidate who will vote as unerringly conservative as Rehnquist, who was first appointed to the Court by President Nixon. For nearly three decades, Rehnquist has strongly favored property rights, becoming a key ally to the "takings" movement. He routinely supports states in clashes over the role of federal mandates and long has been a skeptic of affirmative action. As a result, Rehnquist's departure could render the Court more liberal on many issues, rather than less, according to Roy Englert, who closely watches the Court as an attorney with the law firm of Robbins, Russell, Englert, Orseck & Untereiner.

Although Rehnquist, 78, has not tipped his hand on a potential departure, health problems left him largely absent from the fall session and are fueling speculation that he soon will step down. Moreover, when Republicans regained a majority in the Senate in November, the stars moved closer to alignment: The Republican majority smoothes the path for a Bush nominee to the bench and ensures that even a bruising confirmation battle could be brought to a close before the 2004 presidential campaign unfolds. In fact, from the standpoint of the Bush White House, a resignation before June 2003 would be ideal, allowing the administration to have a new appointee on the bench before the high court reconvenes in October.

President Bushs reputed interest in naming a Hispanic to the bench also is likely to reshape the Court. GOP efforts to repair some of the damage caused by racially corrosive comments by former Senate Majority Leader Trent Lott make a Hispanic nominee an even more-attractive option. The top contender, White House Counsel Alberto Gonzales, is widely thought to be a moderate on social issues such as affirmative action and abortion. However, liberal and conservative groups view Gonzales, also a close Bush adviser, with some trepidation because he has rarely been pinned down on those and other politically charged issues.

Appointed to the Texas Supreme Court in 1999 and on the bench just shy of two years, Gonzales votes pro-business on employer cases, ruling for companies and against consumers more often than not. One telling example of his leanings: He joined a 2000 majority ruling that blocked a class-action lawsuit against Ford Motor Co. filed by car owners whose vehicle paint had begun to crack and peel prematurely. And according to Texas consumer groups, Gonzales voted with the insurance industry against consumer complaints and class-action suits about 70% of the time.

Gonzales' record on private property rights is more nuanced than some pro-business groups might like, however, particularly since many Supreme Court rulings on takings and similar issues hang on narrow 5-4 majorities. For example, Gonzales voted to strike down a Texas law allowing landowners to create their own water quality zones, essentially exempting themselves from environmental and water quality ordinances.

Gonzales also revealed at least a moderate streak on abortion when he joined a majority ruling on the Texas court, allowing minors, in some circumstances, to bypass parental notification requirements before having the procedure.

Rehnquist's resignation would do more than open a slot on the high court, though. It also would leave open the position of chief justice. Although it is not unheard of for a president to nominate an outsider directly to the chief justices chair, current members of the Court more typically are elevated. The presidents conservative political base will push to give the job to Antonin Scalia, usually seen as the Courts most conservative member. But thats the one choice sure to touch off a firestorm in the Senate, with pro-choice allies worried about Scalias strong antiabortion stance.

Instead, the best bet as Bush's pick is Justice Sandra Day O'Connor. Rumors that she, too, was contemplating resignation have largely dissipated. O'Connor appears to enjoy her role as a centrist and would certainly relish the prospect of being elevated to chief justice. Promoting O'Connor to the top post would make Bush the first president to name a woman to head the Supreme Court. Such a move would embellish the presidents centrist credentials and provide ample political cover to move a conservative nominee through the Senate to fill the vacated seat, satisfying the presidents conservative supporters.

While Alberto Gonzales is the presumed front-runner for a nomination to any vacated seat on the bench, several Hispanic choices fill the second tier of candidates, including one with strong appeal to conservatives: Miguel Estrada, an attorney and Bush appointee nominated to a seat on the U.S. Circuit Court of Appeals for the District of Columbia in May 2001. Estrada, born in Honduras, is well liked by conservatives and is more a known entity than Gonzales.

But hes a long shot. Only 41 years old, Estrada would prompt opposition from pro-choice and other liberal groups, not only because of his conservative record but also because his relative youth means he would likely sit on the Court for three or four decades. Estrada was also scarred by a tough confirmation battle overseen by Democrats in 2002, leaving bad feelings on both sides.

If neither Gonzales nor Estrada gets the nod, other options include: Emilio Garza, currently on the bench of the 5th Circuit Court of Appeals for the District of Columbia; John Roberts, a Washington, D.C., lawyer who appears frequently before the high court and is now awaiting confirmation to the U.S. Court of Appeals for the District of Columbia; and Danny Boggs, appointed to the 6th Circuit by President Reagan. Boggs is a conservative whose Cuban ancestry might also be attractive to the president.

There is, of course, the possibility that Bush will have the opportunity to name more than one new member to the Supreme Court. The most senior member on the bench at 82, Justice John Paul Stevens perennially is rumored to be close to retirement. He's in apparently good health, but liberal groups quietly worry whether he can outlast a Bush White House, particularly if the president is reelected in 2004.

Researcher-Reporter: Gregory Litchfield

Source: © 2003 The Kiplinger Washington Editors, Inc.

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