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Politics and the U.S. Supreme Court

By Charles Bierbauer
CNN Senior Washington Correspondent

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WASHINGTON (CNN) -- What if Chief Justice William Rehnquist is simply tired of it all and prepared to pack his robes?

Skip forward to June 27. The Supreme Court has wrapped up its term a few days early, as has been its practice the past couple years. The last opinion has been delivered and the chief says: "I am submitting my resignation to the President as of the end of the current term. The court stands in recess until the First Monday in October."

It could happen.

In his year-end report Rehnquist did lament the way the politics of the last election had intruded into his court "in a way that one hopes will seldom, if ever, be necessary in the future."

We're just supposing here, of course. But Rehnquist is 76 and has been on the court since 1972. John Paul Stevens is 80. Sandra Day O'Connor is 70 and reportedly eager to get back on the Arizona golf courses where she recently shot her first hole-in-one. All three could retire, if not this year, at least on George W. Bush's watch.

What an opportunity. What to do?

We know the new president's models on the court are Antonin Scalia and Clarence Thomas -- "people who will strictly interpret the Constitution."

"A recipe for disaster," Planned Parenthood Foundation's Gloria Feldt told the Senate Judiciary Committee hearing on John Ashcroft's nomination to head the Justice Department. During the fall campaign Planned Parenthood and other organizations favoring a woman's right to choose an abortion ran ads saying the biggest stake in the election would be the next president's power to choose Supreme Court justices.

The Ashcroft hearings will look benign compared to what might ensue if Bush seeks to add a strong conservative to the court. But the hearings set a benchmark for Democratic anxiety.

"I would hope the next nominee would not be someone seen as a polarizing factor or someone seen as pushing the Supreme Court into a political mold," Senator Pat Leahy, the Vermont Democrat who's presided over the Ashcroft hearings, said in an interview.

The justices may disavow politics. "Don't try to apply the rules of the political world to this institution," Justice Thomas told a group of high school students on the day after the court issued its election-ending ruling. "They do not apply."

We may choose to believe him or not. Still the selection of justices is inevitably a political process.

Even after the Ashcroft battle -- and after the effort to make Linda Chavez secretary of labor failed, albeit for other reasons -- some conservatives say Bush ought to challenge Democrats to accept his nominees.

"What he ought to do is keep nominating people of the same persuasion," says Robert Bork. Bork knows a thing or two about facing the Senate when you're guaranteed to be outvoted. He insisted on a vote denying him a seat on the Supreme Court, rather than have President Reagan withdraw his nomination.

"Eventually, I don't think they can turn everybody down," Bork says.

We're still supposing here, but it's not too much of a stretch to think Bush might like the sound of Chief Justice Antonin Scalia.

And others might cringe at the notion.

"If he does nominate someone like Scalia or Thomas the opposition would be unprecedented in the history of this country," says Ralph Neas of People for the American Way and a vigorous opponent of the Ashcroft nomination.

Well, suppose Bush makes Scalia the chief and fills Scalia's seat with federal appeals judge Emilio Garza. Former Solicitor General Walter Dellinger, a Democrat, notes that would force Democrats to contemplate whether they want to challenge the court's first Italian-American chief justice and first Hispanic justice.

"No one is going to get a free pass in the U.S. Senate, no matter who they are. Not because of religion, race, sex or anything else," says Senator Leahy.

The Senate confirmed Scalia 98-0 in 1986.

Judge Bork doubts Scalia, with his conservative record on the court, could be confirmed today. Bork says Bush will "have to get someone whom he suspects has the right judicial philosophy from his point of view, but has not written anything that can be proved against him." A stealth conservative.

That's what the new president's father thought he had when he named David Souter to the court in 1990. Souter now regularly votes with the court's liberal brethren.

What may most determine Bush's Supreme Court choices is the 50-50 split in the Senate. That could make a controversial nominee problematic and narrow the president's options. That balance could change if the Democrats were to win a majority in the Senate in the 2002 elections.

So George W. Bush might have as little as two years to alter the disposition of the Supreme Court. We're just supposing here, but we might suppose the justices are aware of that, too.

Charles Bierbauer, CNN's senior Washington correspondent, covers the U.S. Supreme Court and public policy issues. Send comments to Charles Bierbauer by writing to charles.lawcenter@cnn.com.