POLITICIANIZE THE POLITICIZED

Lobbying Starts as Groups Foresee Supreme Court Vacancy (ROBIN TONER and NEIL A. LEWIS, June 8, 2003, NY Times)

The expectation of change on the court is based, in part, on its record-breaking stability in recent years; no one has stepped down since President Bill Clinton appointed Stephen G. Breyer in 1994, providing for the longest period without a turnover since the 1820's.

The three oldest judges are Republicans, and White House officials say that two of them--Chief Justice William H. Rehnquist, who is 78, and Justice
Sandra Day O'Connor, who is 73--would be the most likely to retire, given the knowledge that a Republican president would pick their replacements.
More than one vacancy this summer would add even more urgency to the campaigns, and Justice O'Connor's frequent position as a swing vote could intensify a battle over her successor. [...]

Administration officials say that the White House has compiled dossiers on dozens of potential nominees, but that the list of genuine candidates is far smaller, fewer than 10. So far, the discussions have focused on providing possible nominees for different circumstances, depending on who resigns.

In almost all the possibilities, officials said, Mr. Gonzales, the White House counsel and a longtime legal adviser to Mr. Bush, would be a candidate. Mr. Gonzales would be the first Hispanic member of the Supreme Court. Mr. Bush's top aides, notably Karl Rove, his chief political adviser, are described as well aware that this would provide a political advantage for both him and the Republican Party, which has been aggressively courting Hispanic voters.

But social conservatives, an important component of Mr. Bush's political coalition, have expressed increasing wariness about Mr. Gonzales. Many say he reminds them of Justice David J. Souter, who was named to the court by President Bush's father, and who they say had been sold to them as a solid conservative vote but turned out otherwise.

It seems most likely that, if given one nominee, Mr. Bush will appoint the Court's first Hispanic justice, with Mr. Gonzales the odds on favorite. That's all well and good, honoring an important ethnic group and serving an important political purpose for the GOP.

However, there's another group that's not represented on the current Court but which really should be: professional politicians. In fact, if the Chief's job opens, Mr. Bush should appoint the best candidate from among the political class to the position--possibilities might be: John Ashcroft; Frank Keating; Marc Racicot; etc.. The Court needs a politician (or several) for a variety of important reasons.

First of all, good politicians are adept at achieving consensus and at compromising to gain desired results. These skills made men like the post-presidency William Howard Taft and former governor Earl Warren great Chief Justices, at least in terms of how their Court's functioned. Ideologues, though they play important roles too, are frequently ill-suited to this type of task.

Secondly, politicians are more sensitized to where the citizenry and the rival branches of government are at. So, when the Warren Court decided the explosive Brown v. Bd. of Ed. they understood that to have any legitimacy, deserved or not, they needed a unified Court. Their 8-0 decision made desegregation seem a matter of unambiguous law and gave it an air of inevitability. Professional politicians also understand the functioning of Congress and the way legislation is crafted, matters that nowadays seem to elude the justices.

It's strange that while being a lawyer is now, unfortunately, considered an absolute requirement for the Court, little attention is paid to a background in legislative work, even though all (at least most) of their rulings will be based on legislation handed down by politicians and even though forging majorities for given opinions so resembles political horse trading. Mr. Bush has more than a few politicians with substantive legal backgrounds he can choose from, and he should. Posted by Orrin Judd at June 9, 2003 9:03 AM