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Holding Court with Joan Biskupic

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Friday, February 11, 2000

This week "Holding Court" looks at the presidential candidates' comments about Supreme Court nominations. The stakes are high. Whoever wins the White House could name from two to four new justices, depending on the timing of retirements. Presidential candidate George W. Bush says he likes Justices Antonin Scalia and Clarence Thomas and would look for judges who "strictly" interpret the Constitution. John McCain has praised Chief Justice William H. Rehnquist. Al Gore has avoided naming names and says, "I'm not comfortable with litmus tests for a Supreme Court nomination." For his part, when Bill Bradley was a senator he said he wouldn't choose someone who wouldn't discuss his views and was one of only nine senators who refused to vote against David Souter.

But how much can a president, or any elected official for that matter, affect the decisions of the judiciary? How political are those decisions?

Joan Biskupic has covered the Supreme Court for The Washington Post since 1992. Co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court, she holds a law degree from Georgetown University. Biskupic covered government, politics and legal affairs for CQ's Weekly Report before joining The Post.

She answers your questions on the Supreme Court and legal affairs on Fridays at 11 a.m. EST. The transcript follows:

Joan Biskupic: Today we're looking ahead at how a new president could reshape the Supreme Court. Chief Justice William Rehnquist is 75, Justice John Paul Stevens turns 80 in April, and Justice Sandra Day O'Connor will be 70 next month. These three justices are on the list of most likely to retire during the next president's time in office. And even though Supreme Court justices have a way of hanging in there, longer than the rest of us, their ages and tenure have raised speculation about new appointments and how that could change the law of the land. Abortion, school prayer, federalism – disputes on these topics have all been decided by a single vote in recent years.

Philadelphia, Pa.: How political has this administration, compared to others, been in its choice of positions to take, as a party or in amicus briefs, before the court? Have the Solicitors General seemed pretty independent, or have they been pushed to move a partisan agenda?

Joan Biskupic: This is a great question and it points up another way that a new administration can affect the high court. The solicitor general, who represents the government and often weighs in with advice even when the government isn't a direct party, can press a certain ideology on the court. This administration has not been known for that. In fact, Clinton's SGs have tended to try to avoid the politically-charged cases; I'm thinking about the gay rights dispute a few years ago. BUT, under Bush and Reagan (particularly Reagan), the SGs were much more active. I remember when the Supreme Court upheld abortion in 1992, the majority testily made a point of saying that SGs had five times in the previous decade asked the court to overturn Roe v. Wade.

Ellicott City, Md.: I'm curious about the relationship between those of you covering the court. In my previous job I had the opportunity to observe reporters from different newspapers (two of which were owned by the same publisher) who covered the same beat. They were all very friendly with one another, but even the two from the newspapers owned by the same publisher were extremely competitive when it came to being first with a story.

Granted that these were local papers and you're working on a national level, but I'm inclined to think that this would be true at the Supreme Court as well. Or is it? Thanks, and I apologize for not being on today's designated subject, so I won't send in a rant if you don't answer this one!

washingtonpost.com: All rants are welcome all the time – even if we don't get to them right away.

Joan Biskupic: We're all pretty friendly with each other – but very competitive. This isn't a beat with many "scoops" – the way more political beats are. But if there is hot news to be had, each of us wants to be first with it. And we all try to write our stories in ways that are more interesting and better read. Some Friday over the next couple of weeks, I'll do a "Holding Court" segment on the Supreme Court press. It's an interesting bunch.

One factor that distinguishes these reporters from other beat reporters is how long people stay on. I've been covering the court for 11 years, the last 8 for the Post, and I am one of the "newest" reporters up there. My main competitors have been at it for 25 and 30 years. The Baltimore Sun reporter has been writing about the law for well over 40 years (from before I was even born, I like to remind him).

washingtonpost.com: Is this idea of presidential candidates getting up on the stump and talking about judicial appointments something that has escalated since Roe v. Wade, or has the judiciary always been a large issue? Roosevelt's stacking the court must have brought the Supreme Court into the forefront.

Joan Biskupic: The Supreme Court has always been a big political issue. (Think of the school desegregation controversy and the "Impeach Earl Warren" signs that dotted the South.) But you're right to mention Roe v. Wade, because abortion had raised the stakes in so many ways. That issue has remained controversial, and opponents of the 1973 ruling have not given up their hopes that it can be reversed. ... Even in today's campaign, lots of talk about the court comes down to whether the president would appoint someone for or against abortion rights.

Wauwatosa, Wis.: I have been looking for a decision on harassment in the schools that does not tie itself to "sexual" harassment. More of ignoring harassment that is reported to the authorities and is ignored in the school setting. Did the court cover this in their recent rulings? If so, may I please have the case and date of the ruling?

Joan Biskupic: Thank you, Wauwatosa, a great Wisconsin city. But I don't have an answer for you. The harassment cases have come to the court under anti-discrimination law (protecting women and girls from bias because of their sex), so they've necessarily involved a sexual component. I don't know of any recent case that has involved non-sexual harassment.

washingtonpost.com: You can search this term's docket by subject in our Court resources section.

Richmond, Va.: I was wondering if you could sketch for me the two resignation schemes that could occur in late 2000/early 2001, depending on which party wins the White House.

I have heard rumors that say with a GOP president, Rehnquist and Scalia would leave and allow that new president to make those nominations. Would this also happen with a Democratic president?

I even heard a rumor about Scalia wanting to come out and run for some office. What about Ginsburg's health?

Can you shed some light on my "litany" of questions :-? Thanks.

Joan Biskupic: Sure. First, I can't believe that Scalia would leave the court anytime soon, and I definitely cannot see him running for political office. This is a guy who makes McCain look like a shrinking violet. ... If a GOP candidate wins, I think we're likely to see Chief Justice Rehnquist step down fairly soon. But justices usually don't resign in the middle of a court term. So the earliest opportunity for any president would likely be summer of 2001. If a Democrat wins, the chief may try to hold on. As far as I know, he's in good health. But he has many other interests (likes to write books, paint), so he might want to move on before he hits 80. Justice Stevens was appointed by a GOP president (Ford), but may want to leave under a Democrat, simply because his philosophy is more liberal. ... And about Justice Ginsburg, I think her health is fine. She is undergoing chemotherapy as a preventative measure, related to the cancer she had last fall. I don't expect her to retire soon either. I think she and Scalia will grow old together on the bench.

Lincoln, Neb.: Since Supreme Court justices are indeed nominated because of their political views, do you think it is credible for them to then turn around and say that they are strictly enforcing only the letter of the law? Another article in the post on-line claims that the current Supreme Court would like to be known as jurists alone. Do you feel that can be said of them or do you feel that their political beliefs have caused them to interpret laws towards their personal preferences?

washingtonpost.com: Story: The Rehnquist Court: Justices Want to be Known As Jurists, Not Activists (Jan. 9)

Joan Biskupic: Intriguing question. I think that the justices, from their own point of view, think they are being politically neutral. BUt, of course, they all bring their own experiences and personal ideology to the bench. That causes them to interpret the law in particular ways. The justices believe they are being true to their own judicial instincts. Critics will often say they are bringing their own political beliefs to bear. As a group, the current court is not very "activist."

Washington, D.C.: How much is legitimately known about a president's process for choosing judicial nominees? I know it's fiction and this sounds stupid, but this season on the show "The West Wing," they considered a candidate for the court about whom they were crazy. Then an unsigned writing of his from 20 years before surfaced, and led to a whole spate of questions about his beliefs on privacy, and they ended up choosing someone else at the last minute. Do last-minute switches like that really happen?

Also – again, forgive me – this week on the show, the court denied cert. on a death-penalty case on a Friday evening. Are there emergency-type sessions like that?

Joan Biskupic: Candidates do sometimes get pulled at the last minute. Sometimes because of potential scandal. Sometimes for other, vaguer reasons. In 1993, CLinton was leaning toward Stephen Breyer, but then he talked with him (Breyer was in his hospital bed at the time after a biking accident) and had second thoughts. Clinton turned then to Ruth Bader Ginsburg. Clinton chose Breyer the following year. ... Remember Reagan decided at the last minute not to nominate Douglas Ginsburg because of a pot controversy that broke in the news? Lots of stuff emerges at the last minute: think of the Anita Hill scandal that almost sunk Clarence Thomas. If Bush had known about her allegations before he nominated Thomas, Thomas might not have been selected.

.... And about your death penalty question: Yes, the justices will conduct an emergency session by phone if an inmate is filing his last appeal before a scheduled execution.

Westerville, Ohio: I have heard from GOP insiders that the next likely appointments will be Judge Michael Luttig of the Fourth Circuit and Judges Emilio Garza and Edith Jones of the Fifth Circuit. All are young , strong conservatives (à la Scalia and Thomas), and have qualities that would aid in their confirmation (Luttig's tragedy involving the murder of his father, Garza being the first Hispanic, and Jones being a woman). Have you heard anything about these judges and their prospects?

Joan Biskupic: Well, Ohio, you're not out of the loop. Those are some of the leading names coming from the GOP side. But they've been associated exclusively with Bush. All bets are off if McCain somehow gets the nomination. ... But can any of these conservative lightning rods get confirmed? Very close call. They have pretty deep paper trails, and Luttig, here in the Richmond-based 4th Circuit, has definitely staked out the far right. I think there would be a pretty vicious fight in the Senate over his nomination. He's young, only about 45, and he would be on the high court for a long time and definitely reshape the law.

Las Cruces, N.M.: What impact do you think the court's trend of 11th Amendment rulings regarding the inapplicability of federal civil rights statutes such as ADEA and ADA to states will have in the area of section 1983 litigation? In other words, do the current rulings effectively overrule case law holding such statutes to be exclusive remedies and thereby excluding certain claims that federal rights have been violated by states or state agencies from the ambit of section 1983?

Joan Biskupic: No, at this point the rulings you refer to – limiting individual lawsuits against the states to vindicate particular federal statutory rights – would not undermine the law known as Section 1983, which allows people to sue government for violation of their constitutional rights.

Chicago, Ill.: One particularly controversial aspect of the 7th Circuit's en banc opinion in Hope Clinic v. Ryan and Doyle, the consolidated "partial-birth" abortion cases, was the court majority's invention of a judicial procedure that it called "precautionary injunctions." A key issue in the two cases is whether the state statutes at issue – Illinois' and Wisconsin's – are worded so broadly that they permit the prosecution of physicians for performing the types of abortions unequivocally protected under Roe v. Wade. Judge Frank Easterbrook, writing for the bare majority, said the statutes are unconstitutionally broad but that various district judges should rewrite the statutes, via precautionary injunctions, to bar only the late-term partial-birth procedure, which, the majority said, is constitutionally permissible.

Given that judges normally lack the legal authority to rewrite statutes, it seems to me that the real purpose of the "precautionary injunctions" contrivance was to preserve Judge Easterbrook's viability as a candidate for nomination to the Supreme Court by a Republican president.

Another 7th Circuit appellate judge, Kenneth Ripple, seems to be using his judicial platform to enhance his own chances for nomination. Since the 1994 Congressional elections, his support for the rights of habeas petitioners and plaintiffs in employment-related and products liability cases has ebbed and flowed with the apparent political fortunes of the front-running Republican presidential candidate of the moment and, thus, his own potential as a Supreme Court nominee. Judge Ripple declined to participate in the Hope Clinic cases, presumably because he is an adjunct professor of law at Notre Dame. His recusal I think, enhances his viability as a potential Court nominee because his views on abortion rights remain, conveniently for him, not disclosed.

Are these judges among those mentioned as potential nominees of a Republican president?

Joan Biskupic: I don't think Easterbrook is bucking for a nomination to the high court. That abortion ruling is consistent with his usual conservatism. Also, I don't hear his name much as a potential nominee. I haven't heard Ripple's mentioned at all. He was put on the 7th in 1985, the year after Reagan appointed Easterbrook, but Ripple's record and writings have not gotten the national attention that Easterbrook's have.

washingtonpost.com: Last week you talked about Gary Bauer's proclamation that he would end abortion on demand once elected, and how that assumption was false. Why is there so little truth-squading of the specifics of candidates' promises on the judiciary? Is it simply assumed that it's all hyperbole to make a point?

Joan Biskupic: I'm not sure. Do you think the public really believes candidates who claim they can change the law through their appointees? ... I think that reporters do try to "truth-squad" some of those claims. We also like to point out how often appointees disappoint their presidents. David Souter voted to uphold abortion rights, enraging a lot of Bush administration insiders.

Philadelphia, Pa.: Are Cabranes, Tatel, and Sotomayor among the names being talked about as possible Democratic nominees? Are there any others you can mention?

Joan Biskupic: Yes, those Dem names have been mentioned, even in recent years of the Clinton administration. Neither Gore nor Bradley have brought up specific names, but I'm sure each of them would add other federal judges and non-judges to a short list. For those of you not familiar with the names, David Tatel is on the D.C. Circuit; Jose Cabranes and Sonia Sotomayor are both up in the 2nd Circuit. Tatel happens to be blind. If either of the other two were chosen, the appointment would mark the first Hispanic justice on the court.

Washington, D.C.: Do you think that nominees to the court will be judges with relatively short paper trails, particularly with respect to their scholarly writing. If memory serves, it was Judge Bork's law review articles, and not his decisions on the D.C. Circuit, that hurt his confirmation effort.

Or do you think that [President] George HW Bush's experience with Justice Souter (who has emerged as liberal to moderate) might encourage future presidents to select judges with clearly expressed views?

Joan Biskupic: A paper trail is OK, it just can't be controversial. Clinton's appointees, Ginsburg and Breyer, both had been lower court judges for several years, wrote scholarly articles and gave many speeches. BUt they both have a measured approach and tended not to say anything provocative that could be seized upon by critics.... I think the next president will want to feel comfortable that he knows the nominee's views (i.e., will the person vote to overturn abortion rights?) but I think he will also lean toward someone whose views are more moderate and not likely to spark a Senate fight.

Arlington, Va.: The introduction to this chat says that Bill Bradley "was one of only nine senators who refused to vote against David Souter." Not being able to remember what actually transpired, I was unable to figure out how that statement is garbled. Should it be "nine *Democratic* senators," or "refused to vote *for*" Souter, or something entirely different? Thanks for the clarification.

Joan Biskupic: Hmmmm. I'll have to check out that wording. Souter was approved by the Senate on a vote of 90 to 9. Bradley was one of those nine who voted against him, based on fact he wasn't certain Souter would vote to uphold Roe v. Wade.

All nine of the senators who voted against Souter were in fact Democrat. Thanks, Arlington.

Capitol Hill: Suppose The three justices you mentioned in the opening (Rehnquist, Stevens and O'Connor) were to resign in the next presidential term. How would a Democrat or Republican affect the 5-4 decisions? Since Rehnquist and O'Connor tend to vote together most of the time, it seems that a Dem would have more effect.

Joan Biskupic: Generally, it would be a wash if a GOP president replaced Rehnquist and O'Connor, because he would likely choose someone who voted in a similarly conservative manner. If a GOP president named a successor to Stevens, it would tip the court to the right, because Stevens is arguably the most liberal on the bench now. That could mean a shift on abortion. Conversely, if a Democratic president filled the slots of Rehnquist or O'Connor, that presumably would move the court more to the left and also undermine the current majority's march on federalism, giving more authority to the states at the expense of Congress.

New York, N.Y.: Back to the question of presidential judicial nominations. How much can a president really tell about a judge from his or her record? Granted, precedent and fundamental beliefs are strong, but haven't there been some real surprises as justices voted differently than expected once they're on the bench? After all, judicial philosophies are likely to evolve. What are the biggest surprises/turnarounds by justices? Like where presidents were kicking themselves.

Joan Biskupic: You're right. Eisenhower supposedly said that he made two mistakes in his presidency and they were both sitting on the Supreme Court (Earl Warren and Bill Brennan). Nixon put Harry Blackmun on the court, and within three years Blackmun had penned Roe v. Wade. Surprises abound. And any new president may be in for his share, too.

Joan Biskupic: That's it for today. Thanks to all who participated. I know some of your questions didn't get answered, but we'll probably revisit this topic again during the campaign season. The field will be narrowed, of course, and we're likely to hear more from the candidates themselves on what they'll do.

Next week, we're temporarily switching to Thursday morning at 11. The topic will be HMOs and a new Supreme Court case that presents the first big challenge to HMO cost-cutting practices that allegedly compromise medical care. The case to be argued at the court this month involves a woman who had a sharp pain in her abdomen and had to wait eight days for a sonogram. In the meantime, her appendix ruptured. So we'll be talking about HMO lawsuits and anything else that comes up.

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