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Court Moves May Give Bush Political High Ground

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Times Staff Writer

At a moment of weakness for the White House, the Supreme Court vacancy left by the death of Chief Justice William H. Rehnquist could offer President Bush an opportunity to reassert his influence and regain momentum.

Although Bush faces some of the lowest approval ratings of his presidency and has been criticized by both parties over his administration’s response to the catastrophic flooding along the Gulf Coast, he retains enormous advantages over his opponents in the struggle to shape the court’s future, many analysts agree.

When the president’s party controls the Senate, it can be extremely difficult for foes to generate full-scale opposition to a Supreme Court nominee. Democrats and liberal critics of John G. Roberts Jr., Bush’s choice for the vacancy created by Justice Sandra Day O’Connor’s retirement, have been pointedly reminded of this during the last several weeks.

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Indeed, with Bush’s sagging poll numbers and the turbulent aftermath of Hurricane Katrina threatening to disrupt much of his legislative agenda, the debates over Roberts and Rehnquist’s successor could offer the president his best chance to energize his core supporters and generate victories on Capitol Hill.

“This is one of the few ways even a weak president can make his mark -- especially when his party controls the Senate,” said David Yalof, an associate professor of political science at the University of Connecticut who studies judicial appointments.

Bush, in fact, could make his mark through as many as three confirmation fights.

That scenario could arise if Bush chooses to elevate one of the current Supreme Court members to succeed Rehnquist as chief justice. Then the Senate would need to confirm not only that decision, but Roberts and a successor to the justice promoted to the top job.

Democrats and liberal groups say that if Bush nominates Antonin Scalia or Clarence Thomas -- the court’s most conservative remaining members -- to replace Rehnquist, opponents will mobilize much greater resistance than they have managed against Roberts.

“I think the reaction would be immediate, and it would be widespread opposition in the Senate and throughout the country,” said Ralph G. Neas, president of People for the American Way, a leading liberal group opposing Roberts.

But history underscores the advantages the White House has in this process: No president has seen a Supreme Court nominee rejected while his party controlled the Senate since a filibuster blocked the attempt by Lyndon B. Johnson -- weakened by Vietnam and in the final months of his presidency -- to elevate Associate Justice Abe Fortas to chief justice in 1968.

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The last time the Senate directly voted down a Supreme Court nominee while the president’s party controlled the chamber was in 1930, when President Hoover’s choice of John J. Parker was narrowly rejected.

The basic problem for Democrats is that traditionally, the vast majority of a president’s party supports his Supreme Court nominations. That means the minority party is usually hard-pressed to block the choice unless it is willing to use the filibuster, a procedural tool that can prevent consideration of nominations or legislation.

But Senate Democrats appear reluctant to use that option after the bipartisan deal this spring in which seven party moderates agreed not to filibuster Bush’s judicial nominations except in “extraordinary circumstances.” There appears to be little chance that Democrats could muster the 40 votes to sustain a filibuster against Roberts, absent unexpected developments at his confirmation hearings.

Given the GOP’s advantage in the Senate, few strategists in either party think that the choice of a Rehnquist successor -- for example, someone more acceptable to Democrats -- will be affected by Bush’s worries about losing a confirmation fight, even though his poll numbers are sagging and questions about government response to Katrina are rising.

“That’s just not how he operates,” said one GOP strategist who spoke on condition of anonymity when discussing White House thinking. “He is going to pick the person who he believes is best qualified for the job.”

Added Tony Perkins, president of the Family Research Council, a leading social conservative group: “He campaigned on the fact that he was going to nominate justices who understood judicial restraint, and I don’t think anyone expects him to do anything different.”

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In a somewhat dissenting view, Bruce Buchanan, a political scientist at the University of Texas who has long watched Bush, said the president might try to replicate his approach with Roberts: finding a nominee who reassured his base without infuriating his opposition.

Rather than inciting a full-scale confrontation while he faces so many other problems, Buchanan said, “Bush could go with somebody unexpected, like a politician, that could throw the opposition a little off balance.”

In statements responding to Rehnquist’s death, several Senate Democrats -- including Edward M. Kennedy of Massachusetts and Dianne Feinstein of California, who are members of the Judiciary Committee -- urged Bush to move slowly and consult widely before nominating a new chief justice.

Sen. Charles E. Schumer (D-N.Y.) floated the most specific, if unusual, suggestion: He proposed that Bush temporarily fill the Rehnquist vacancy by asking O’Connor “to stay on as chief justice for, say, a year.”

Appearing on ABC’s “This Week,” Schumer said: “At a time when the nation needs unity and stability more than ever, she would bring it, and it would be a breathtaking choice.”

O’Connor has said she will stay on the court until her successor is confirmed. She has given no indication that she would be interested in Schumer’s suggestion.

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Republican aides and conservative groups, many of whom had been increasingly critical of O’Connor’s rulings in recent years, dismissed the idea as a gimmick. “That’s the type of argument that is media-friendly, but it is not a particularly serious argument,” said the GOP strategist familiar with White House thinking. “There is no precedent in our system of government for a temporary, one-year appointment to the Supreme Court.”

Bush seemed to be looking toward a successor for Rehnquist sooner rather than later. “There are now two vacancies on the Supreme Court, and it will serve the best interests of the nation to fill those vacancies promptly,” the president said Sunday.

Among conservatives, the general expectation is that Bush will move quickly. “We expect the president to take about a week to 10 days,” said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice. “This is not catching the White House off-guard.”

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Times staff writer Edwin Chen contributed to this report.

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(BEGIN TEXT OF INFOBOX)

Justices’ statements

‘William Rehnquist’s independent, impartial and dedicated leadership of the Supreme Court has been an inspiration to those of us privileged to serve with him -- and to the entire nation as well.... He was truly the first among equals in discharging his judicial duties in a prompt, scholarly and fair manner. He was a good friend, maintaining his sense of humor and proportion throughout the difficult period that marked his most recent service.’

John Paul Stevens

‘He steered the court along a path of responsibility and careful analysis .... He led the court with firm principles but with a light touch. He never lost his sense of humor and he was able to secure the cooperation and admiration of all of the justices for the years in which he served.’

Sandra Day O’Connor

‘Chief Justice William H. Rehnquist led a philosophically diverse group of justices through 19 years in which public attention was focused upon the Supreme Court to an unprecedented degree. His keen intellect and sound judgment commanded the respect of his colleagues, and his personal qualities of considerateness and fairness won their affection. His death ... is a double loss for me; he was my friend long before he was my chief.’

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Antonin Scalia

‘William Rehnquist was a warm, compassionate, decent man; a brilliant jurist; and a chief justice of superb and historic stature. In his personal relations he was unpretentious to the point of being casual, almost as if to put friends and colleagues at ease with his vast knowledge of history, remarkable grasp of the law and a mind so precise he was at once formidable and delightful. He was a skillful presiding officer of exemplary fairness.’

Anthony M. Kennedy

‘Virginia and I were deeply saddened to learn of the death of the chief justice. We will miss him deeply as a friend and as a colleague. He was a good man who epitomized fairness, dignity and strength of character.’

Clarence Thomas

‘Chief Justice William H. Rehnquist was the fairest, most efficient boss I have ever had.... A plain speaker without airs or affectations, the chief fostered a spirit of collegiality among the nine of us perhaps unparalleled in the court’s history. He regarded an independent judiciary as our country’s hallmark and pride, and in his annual reports, he constantly urged Congress to safeguard that independence.’

Ruth Bader Ginsburg

‘The chief justice was a brave, intelligent man deeply committed to maintaining the rule of law and preserving an independent judiciary .... He administered the court, as he did the judicial system, effectively and with great fairness. He never allowed disagreements about the law to become personal, and the court followed his example.’

Stephen G. Breyer

David H. Souter

was unavailable for comment, Supreme Court spokeswoman Kathy

Arberg said.

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