Two barely noticed supporters in the budding presidential campaigns of Sen. John McCain and Gov. George W. Bush raise concern in conservative legal circles that either of these candidates in the White House could mean more disappointment with Supreme Court selections.
Former senator Warren Rudman is a leader in McCain's organization. Former assistant attorney general Richard Willard got in on the ground floor of Bush's operation. These two behind-the-scenes operators bear heavy responsibility for what turned out to be the two most disappointing Supreme Court nominations by Republican presidents over the past generation: justices Anthony Kennedy and David Souter.
Could Rudman and Willard determine the high-court choice of a future President McCain or a future President Bush? The prospect is no more fanciful than their backstage role influencing past nominations. That both McCain and Bush win praise from bar associations and editorial writers by disdaining litmus tests for the Supreme Court opens them to manipulation.
These are critical questions considering the importance of who is elected president in 2000. Chief Justice William Rehnquist is 75 years old, Justice John Paul Stevens is 79, and other members of the court are in their sixties. Thus, the new chief executive may dictate the court's direction well into the future. This is of particular concern to conservatives because of what transpired over the past three decades. Between 1967 and 1994, not a single Democratic nominee was added to the high court. Nevertheless, the court's conservative bloc consists of only three members (Rehnquist, Antonin Scalia and Clarence Thomas).
That's the significance of liberal Republican Rudman's being one of conservative Republican McCain's three national co-chairmen. Rudman is almost wholly responsible for the disastrous appointment in 1990 of Souter, an obscure (and then only recently appointed) federal appellate judge. Rudman convinced White House chief of staff John Sununu that Souter -- his deputy when Rudman was attorney general of New Hampshire -- would be a "stealth" nominee: easily confirmable by the Democratic-controlled Senate but dependably conservative once he got on the bench. President George Bush, anxious to avoid trouble on his first court appointment, was convinced by Sununu.
Souter almost immediately joined the court's liberal bloc. He helped write the 5 to 4 decision in 1992 reaffirming Roe v. Wade abortion rights and has voted against school prayer, for homosexual rights and against term limits. Sununu now admits the nomination was a horrible mistake, but an unrepentant Rudman defends Souter as a wonderful choice and presumably would give McCain similar advice.
Richard Willard, a member of the Washington law firm Steptoe and Johnson, is not nearly as close to George W. Bush as Rudman is to McCain. But he is one of the co-chairmen (promising to sell $25,000 in tickets) for the candidate's June 22 reception in Washington, and sources say he would like to run Bush's lawyers' committee, as he did nominee Bob Dole's in 1996.
Willard, who in 1988 headed the Justice Department's Civil Division, had clerked for Kennedy as a federal appellate judge in California and a dozen years later weighed in heavily for his old boss on the high court in the chaos following the Senate's rejection of conservative Robert Bork. Even more than in the case of Souter two years later, Kennedy was sold as a solid conservative. Indeed, his 13-year record on the 9th circuit deserved that label.
Rather than leaping into the arms of the court's liberal bloc as Souter did, Kennedy has been a swing vote, but even more disappointing to conservatives. He flipped on abortion in the middle of considering the 1992 case and provided the decisive 5 to 4 vote to reaffirm Roe v. Wade after hiring as law clerks proteges of liberal constitutional law expert Laurence Tribe. Kennedy wrote the anti-school-prayer majority decision and also joined Souter on the gay-rights and term-limits decisions.
Front-runner Bush and challenger McCain -- neither of whom is a lawyer -- are opaque about likes and dislikes in court nominees. Bush's litmus test is identified as "character," and McCain is described as looking for judges who "share his values." That leaves an opening for Warren Rudman and Richard Willard to translate character and values into judicial choices.
(C) 1999, Creators Syndicate Inc.