Bush may be more aggressive in reshaping courts

By Jan Crawford Greenburg
Chicago Tribune

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Bush in the next four years will make hundreds of lifetime appointments to the federal trial and appellate courts. He also is expected to name one, and possibly more, justices to the Supreme Court, which has not had a vacancy in more than a decade.

"He's already left an indelible mark on the lower courts," said Nan Aron, president of the Alliance for Justice, a liberal public-interest group that has opposed Bush nominees. "A second term will cement his hold on the entire federal judiciary."

The Senate has confirmed 201 Bush nominees. But Democrats joined together and filibustered some of his more controversial nominees, infuriating Senate Republicans who could not muster the 60 votes necessary to bring them to a vote.

Tuesday's election gave Republicans four more seats in the Senate, bringing them to 55. One was from South Dakota, where Republican John Thune defeated Senate Minority Leader Tom Daschle. Some predicted that the addition of Republican seats, coupled with Daschle's defeat, will make it more difficult for Democrats to block future nominees.

"I suspect the president will have something of an easier time in dealing with the Senate Democrats over judicial nominations," said Bradford Berenson, a Washington, D.C., lawyer and former Bush administration official.

Resistance also could come from moderate Republicans.

Sen. Arlen Specter, the Republican expected to chair the Senate Judiciary Committee next year, bluntly warned Bush yesterday against putting forth Supreme Court nominees who would seek to overturn abortion rights or are otherwise too conservative to win confirmation.

"When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think that is unlikely," Specter said, referring to the landmark 1973 Supreme Court decision legalizing abortion. "The president is well aware of what happened, when a bunch of his nominees were sent up, with the filibuster. ... And I would expect the president to be mindful of the considerations I am mentioning."

Asked about Specter's impending chairmanship, another Republican on the panel, Sen. John Cornyn of Texas, did not offer a ringing endorsement.

"We'll have to see where he stands," said Cornyn, a close friend of Bush. "... We want to know what he's going to do and how things are going to work."
 
Bush's solid victory in the popular vote robs Democrats of one of the main arguments they have used to support their filibusters. They long have said they were justified in filibustering some of Bush's nominees because the president failed to win the popular vote in 2000, meaning he had no mandate to reshape the courts in a strong conservative vein.

Some have speculated that Daschle's defeat could make other Democrats in states that voted for Bush hesitant about joining a filibuster. But Aron said Democrats would stand firm.

"If there's been one issue that's galvanized the Democrats over the past four years, it is judicial nominations," Aron said. "I don't see senators holding back for one second. I just don't think a change in the numbers of the Senate will lessen their resolve to oppose extremist judges."

The Supreme Court is divided 5-4 on a host of controversial issues, including race, religion, civil liberties and the environment. With four justices 70 or older, it's likely that Bush will have a dramatic impact on the direction of the high court, just as he has on the lower courts in his first term.

An appointment could come sooner than expected. Chief Justice William Rehnquist announced this week that he is being treated with radiation and chemotherapy for thyroid cancer, prompting doctors to speculate that he is suffering from an advanced form of the disease.

Most observers had predicted four years ago that Bush would name Rehnquist's successor in his first term, but the chief justice stayed on the bench. But his illness and advanced age — he is 80 — dramatically increase the possibility that he will step down soon.

White House officials have had ready a list of possible replacements, with White House Counsel Alberto Gonzales at the top.

But many on the right oppose Gonzales because they fear he isn't reliably conservative. Some also say he could be the next Justice David Souter, an unknown Republican nominee who became a liberal voice.

The comments by Specter and Cornyn were reported by The Associated Press.