New Order in the Court
One day in early January, well before he was sworn in, George W. Bush sat down with Alberto R. Gonzales, his soon-to-be-named White House Counsel. The incoming President's instructions: Start interviewing candidates immediately for federal judicial vacancies. "He [said] that we needed to move as quickly as we could," recalls Gonzales, a former Texas State Supreme Court justice. "It is important to the President, which makes it important to me."
Nominating judges isn't something Bush talked about a lot during the campaign. And he still doesn't give the issue much airtime. But it's critically important to many conservatives who rallied behind Bush when he was fighting for the GOP nomination. And now it's payback time. "This was the most important issue of the last election," insists Clint Bolick, co-founder of the conservative Institute for Justice. "We were electing a judiciary, not a President."
RACING AHEAD. So, with a determination unseen since the Reagan years, Bush has been racing ahead with a bold effort to put his stamp on the federal judiciary. In March, he decided to eliminate the American Bar Assn.'s traditional role in screening nominees. In recent days, his 15-member selection committee has interviewed more than 70 potential candidates. The first nominees should be announced in the weeks after the Senate's Easter recess--a pace well ahead of the Clinton and first Bush administrations. Indeed, the judicial push is likely to delay the day the President's own team is fully staffed, because the Senate and the FBI, which check the background of judicial nominees, are already bogged down with sub-cabinet nominees and will probably have to hold off on some of them to vet judges.
Despite the centrist tenor of Bush's candidacy, the ideology of many of his nominees is expected to be well to the right of most Americans. Indeed, the President's judicial selection committee is dominated by committed conservatives, including Attorney General John Ashcroft, as well as three young veterans of the impeachment wars: Timothy Flanigan, Brett Kavanaugh, and Bradford Berenson, all of whom worked for former Independent Counsel Kenneth W. Starr or cheered him on.
Many others belong to the conservative Federalist Society. When it comes to judicial selection, the Federalists have one mantra: "no more Souters." That's a reference to U.S. Supreme Court Justice David H. Souter, who was appointed by Bush senior but has bitterly disappointed conservatives because of his refusal to overturn Roe vs. Wade, as well as for his moderate stance on other cases.
With an evenly split Senate, judicial politics could be the next blood sport. The Senate must confirm all nominees, and Democrats are already gearing up for nasty confirmation battles. Many are not about to let a President elected without a popular mandate make long-lasting changes to the federal bench. "There are two ways President Bush can approach the judicial selection process," says Senator Charles E. Schumer (D-N.Y.). "He can work with the Democrats...and get things done relatively smoothly. Or he can try to work around us, which is a surefire recipe for conflict."
Bush is well aware of the likely opposition. And he knows that his window of opportunity to shape the federal bench may be limited. Given the frail health of 98-year-old Senator Strom Thurmond (R-S.C.), the tied Senate could tilt in favor of the Democrats at any time. The 2002 midterm elections could also be a problem, since more Republicans than Democrats face reelection.
There are 97 vacancies out of 859 federal judicial positions. Bush's top priority will be filling several trial court vacancies along the U.S.-Mexico border, which has seen a huge upsurge in trafficking and immigration cases. But he's also got his eyes on the bigger prize--openings on powerful appellate benches. The biggest plum may be the three vacancies on the D.C. Circuit Court of Appeals, a key forum for battles between business and regulators.
None of the nominees has yet been named publicly. But sources say those under consideration for key appellate posts in the West include Congressman Christopher Cox of Orange County, Calif., California Supreme Court Justice Janice Rogers Brown, an African American who has become a darling of the right, and conservative law professor Michael W. McConnell of the University of Utah. Topping the list for the D.C. Circuit are big-time law firm partners Maureen E. Mahoney of Latham & Watkins, and John G. Roberts Jr. of Hogan & Hartson LLP.
HOSTILE. Most of Bush's nominees are expected to be conservative on social issues such as abortion and school vouchers. They are also likely to be hostile to regulation, skeptical of antitrust enforcement, apt to find constitutional objections to environmental and land-use laws--and generally more pro-business than Clinton's nominees (table). For example, many Bush appointments may be willing to rule that restrictions on development unconstitutionally infringe on property owners' rights. His picks are also likely to scrutinize rules promulgated by state and federal agencies. "I think they'll review these regulations much more closely," says University of Virginia law professor A.E. Dick Howard. "They will be much less deferential to agency expertise."
Because the Republican-controlled Senate slowed the confirmation process to a trickle during the Clinton Administration, Bush faces more judicial vacancies than normal. What's more, he could get as many as three picks for the Supreme Court, given the possible retirement of Justices William H. Rehnquist, Sandra Day O'Connor, and John Paul Stevens. "Looking at this past election," Gonzales says with a smile, "people realize it really is important who sits on the federal bench." And if Bush gets his way, his marginal victory could change American jurisprudence for decades.
By Dan Carney and Alexandra Starr in Washington