It’s been a little more than two weeks since President Bush’s re-election and already things look different at the White House. Six out of 15 cabinet members have resigned, and Condoleezza Rice is the new secretary of state. Yet many experts think the biggest changes are still to come.
In his new term, President Bush will likely have the opportunity to replace at least one Supreme Court justice, an ability that Washington College of Law professor Steve Wermiel said could have “potentially enormous ramifications for the country.”
“It’s become the norm for presidents to try to use their Supreme Court appointments to try and leave a legacy that will last beyond their presidency,” Wermiel said. “I have no reason to think that Bush won’t try and do the same thing.”
According to JURIST, the University of Pittsburgh School of Law’s legal education network, the thought that Bush will be able to appoint several justices stems from the age of the current court — eight of the nine Supreme Court justices are at least 65 years old, the accepted retirement age.
In addition to their age, JURIST cites the health of the judges as a potential factor in their retirement. Chief Justice William Rehnquist and associate justices Ruth Bader Ginsberg, Sandra Day O’Connor and John Paul Stevens have all fought cancer.
Experts such as Wermiel say that it is likely that Bush will have the opportunity to appoint two to three justices, but the liberal-conservative balance of the court is in question with even one new justice.
“It all depends on whom Bush gets to replace,” Wermiel said. “The court is very evenly divided on most of the major issues that come before them. In most of those cases, O’Connor and Stevens (are) on the liberal side. If (Bush) gets to replace either of those, we could potentially see changes.”
Some of the issues hanging in the balance include abortion and gay marriage or unions.WCL professor Jamin Raskin said that a court with Bush appointees will likely be “unfriendly to progressive federal statutes.”
“We would get a further narrowing of the right to privacy and the right to abortion,” Raskin said. “We would get more deference to presidential power in military concerns.”
As to whom Bush is likely to appoint, Wermiel said that there is a “tremendous amount of speculation.”
“There are about 10 names floating around,” Wermiel said. “I don’t think that (Bush and his advisers) have started to focus on one.”
Names that appear frequently in the media include Harvie Wilkinson III and Michael Luttig from Virginia, Samuel Alito from New Jersey, Sen. Orrin Hatch (R-Utah) and Attorney General Alberto Gonzales.
Raskin said that Luttig and Wilkinson are “good bets” as potential nominees.
“Luttig is a (Justice Antonin) Scalia protege,” Raskin said. “He’s very, very conservative. Wilkinson is a bit more moderate. I would imagine, given Bush’s history, that he will probably try to go for a very right-wing candidate.”
Wermiel claimed that Wilkinson is the most likely nominee, citing his experience, “easygoing manner” and more moderate views. However, Wilkinson is 60 years old.
“It was really Reagan and the first Bush who introduced the notion of picking younger judges that could stay on the court for longer amounts of time,” Wermiel said. “I don’t know that [Bush] is going by the same approach, but if he were, he might feel that Wilkinson is too old.”
Addressing the speculation that Bush might appoint current Scalia as chief justice, Raskin said he doubts Bush will attempt to nominate such a conservative candidate.
“It’s unlikely. … (Scalia) is such a divisive personality,” Raskin said. “(Associate Justice) Clarence Thomas is a much more confirmable candidate.”
Right now, the media, pundits and experts are just speculating. “Nothing is for certain until we know who’s going to step down,” Wermiel said.
Students have their own speculations about what will happen to the Supreme Court.
Greg Wasserstrom, College Democrats president at American University in Washington, said he doubts that Bush will be able to make drastic changes in the court.
“I don’t think the president will be able to go after the court no-holds-barred like a lot of people expect,” Wasserstrom said. “I don’t think a neo-conservative takeover of the court is ultimately going to be possible.”
College Republicans President Mike Inganamort said he agrees that Bush will not appoint extreme justices.
“President Bush has repeatedly said he is not going to appoint justices with the goal of changing policy,” Inganamort said. “The point of the Supreme Court is to strictly interpret the Constitution. President Bush realizes that, while panicky liberals prefer the ‘sky is falling’ line.”
However, if Bush does appoint conservative justices, as some professors expect, Wasserstrom said the effects could be bad for the nation and ultimately bad for Republicans.
“(A more conservative court) will try to go after all the things that are crucial to a healthy, stable, functioning democracy,” said Wasserstrom, citing affirmative action, civil rights, civil liberties and the right to choose as possible issues for the court to decide. “Then again, it (would) come back to bite them. Sixty percent of the country supports a woman’s right to choose, and successfully overturning Roe v. Wade would be a political catastrophe for the Republicans. It’s not a mistake I think they’re likely to make.”
Jeremy Zook, the president of AU Students for Life, said he agrees.
“I don’t think a (court with Bush appointees) will overturn Roe v. Wade,” he said. “It would be possible, but not very likely.”
Regardless of students’ positions, they pointed out the significance of Bush’s ability to appoint new members to the Supreme Court.
“This will be a very important opportunity for President Bush, probably the most important in his presidency,” Zook said. “It will affect the Supreme Court rulings for years to come.”