Bush Spurns Proposal on Court Picks

WASHINGTON -- The White House gave a “thanks, but no thanks” reply Wednesday to an offer from Senate Democrats to consult with the president before he nominates any justices to the Supreme Court.

President Bush’s top legal advisor left no doubt that the choice -- when or if there is one -- will be the president’s alone.

“If a Supreme Court vacancy arises during his presidency, President Bush will nominate an individual of high integrity, intellect and experience,” White House Counsel Alberto R. Gonzales said in a letter to Senate Democrats.

Then “the Senate will have an opportunity to assess the president’s nominee and ... to vote up or down,” he added.

White House Press Secretary Ari Fleischer also dismissed the Democrats’ offer as a “novel new approach” to choosing Supreme Court justices.

In the last week, several Democrats have written Bush to say that he could avoid a battle over the Supreme Court by talking with them about a consensus nominee.

“I stand ready to work with you to help select a nominee or nominees to the Supreme Court,” Sen. Patrick J. Leahy (D-Vt.), the ranking Democrat on the Judiciary Committee, said in a June 11 letter to Bush.

He noted that Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) has taken credit for advising President Clinton to select Ruth Bader Ginsburg and Stephen G. Breyer for the high court.

“Meaningful bipartisan consultation in advance of any Supreme Court nomination” would prevent a “divisive confirmation fight,” said Senate Minority Leader Tom Daschle (D-S.D.) on Tuesday.

Sen. Charles E. Schumer (D-N.Y.), another Judiciary Committee member, offered Bush a few possible nominees, including Republican Sen. Arlen Specter (R-Pa.).

Republican leaders and conservative scholars say they are taken aback by the Democrats’ claim to have a role in the nomination process.

“I am astounded by those letters. Does Charles Schumer think he is the president?” asked law professor John Eastman.

A former clerk to Supreme Court Justice Clarence Thomas, Eastman teaches at Chapman University Law School in Orange and recently advised Senate Republicans on the constitutionality of filibusters. “The president has the sole power to nominate, and only then does the Senate give its advice and consent,” Eastman said.

Sen. John Cornyn (R-Texas), the newest Republican on the Judiciary Committee, also urged Bush to ignore the Democrats. “Few things would politicize our judiciary more than to hand over control of the process for selecting Supreme Court justices to individual members of the Senate,” Cornyn said. “Presidents, not politicians, nominate justices.”

The debate about the Senate’s role in confirming judges is an old one, and it tends to flare up when Supreme Court seats are at stake. At the moment, there is speculation that one or more of the justices will retire this month at the end of the court’s current term.

The Constitution says the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court.”

On Wednesday, Sen. Barbara Boxer (D-Calif.) cited this “advice and consent” clause in describing judicial appointments as “a 50-50 deal.”

She added: “The president, in this process, is not more important than the Senate, and the Senate’s not more important. They have to work together.”

Boxer and other Democrats base their view on historians who say that early drafts of the Constitution gave the Senate the power to appoint officials. The final version of the Constitution, though, made it clear that the power to nominate judges and other officials rests with the president.

Liberal and conservative activists are gearing up for an all-out battle, and the Senate Judiciary Committee has cleared its calendar for possible hearings this summer.

But none of the justices has hinted at retirement; instead, they have spoken of their plans for the fall session.

Fleischer dismissed the talk of any Supreme Court nomination as “idle chatter.”