Beyond Rock, Paper, Scissors ...

Joan A. Lukey, former president of the Boston Bar Assn., writes frequently on legal matters.

With wounds still raw from an angry presidential election, this is not an ideal time to nominate a new chief justice of the United States. But that’s what President Bush will almost certainly have the opportunity to do. And soon.

Chief Justice William H. Rehnquist is 80 years old and battling cancer. On Jan. 20, he administered the presidential oath of office for the fifth time, but all indications are that he will retire soon. When that occurs, a new chief justice will be selected for the first time in almost two decades.

The president, who has demonstrated a pronounced ideological bent in his judicial selections, must now navigate the nomination process with considerably greater care. This is not for the sake of conciliation but because his lame-duck status will become crippling in a couple of years or so, and the momentum of his agenda cannot afford a prolonged filibuster.


He could avoid that distraction simply by honoring his promise in the debates to avoid a “moral values” litmus test in selecting Supreme Court candidates. But that’s not going to happen. The president has repeatedly demonstrated an intention to populate the federal bench with judges who mirror his conservative social values.

The Republicans, however, do not have the 60 votes necessary to defeat a filibuster. He therefore needs a plan to circumvent the talkathon strategy. Most likely, this will take the form of giving with one hand while taking away with the other by putting forth two candidates at once. Ronald Reagan employed a packaging strategy in 1986, nominating a new chief justice from the ranks of the associate justices, and a new associate justice to replace the one elevated. But he failed, at significant political cost, to recognize the need for compromise. By nominating a conservative but relatively centrist chief (i.e., a conservative who occasionally shifts toward the center, including on social issues), Bush will earn kudos, and political capital, for his restraint. With that additional capital, he can invest in his “values” agenda by filling the associate-justice vacancy with a staunch social conservative, a move that has a much more profound, and longer-lasting, effect on the ideological balance of the court.

The irony is that the president can accomplish this political sleight of hand while endearing himself to both of his key constituencies. He can please the neocons (whose issues revolve primarily around foreign policy, the economy and the role of the federal government) with his selection of the new chief. And he can please the theocons (the theological conservatives, whose issues are self-explanatory) through the selection of the new associate justice.

In essence, the president can achieve his objective by applying a new litmus test to the selection of the chief justice.

A high-priority agenda item for this administration and its neocon supporters is a reallocation of the balance of power by appropriating powers from the other two branches of government. When the White House successfully broadens the categories that are deemed to be “executive powers” under the Constitution, it insulates its conduct from interference by either Congress or the courts. In other words, it creates a stronger presidency.

If the president is serious about moving forward with this aspect of his agenda expeditiously in the first two years of his second term, he will nominate a chief justice who views “executive powers” expansively. His best odds of doing that successfully are to select the new chief from the existing court. The sitting justices have addressed this issue several times recently in Cheney vs. United States District Court and Hamdi vs. Rumsfeld, so nasty surprises in future decisions are unlikely. This, of course, dovetails nicely with the overall dual-appointment approach.

Realistically speaking, the pool of candidates is far smaller than the full complement of the court. The president will not consider selecting a justice nominated to the court by a Democrat, which knocks Stephen G. Breyer and Ruth Bader Ginsburg out of contention. Nor will the president forgo a once-in-a-lifetime opportunity to shape the court’s future leadership by tapping a justice who is already over the age of 70. Justices John Paul Stevens (84) and Sandra Day O'Connor (74) are therefore also probably out of the running.

That narrows the pool to justices Antonin Scalia (68), Anthony M. Kennedy (68), David H. Souter (65) and Clarence Thomas (56), all Republican appointments, but covering a broad range of philosophical views.

When one applies the balance-of-powers litmus test to this pool, the results are somewhat surprising.The key is in two decisions handed down in June 2004:

* In Cheney vs. United States District Court for the District of Columbia, the court accepted the administration’s contention that it was entitled to shield its documents regarding the president’s energy task force in secrecy, without judicial review.

* In Hamdi vs. Rumsfeld, the court partially vindicated the rights of Yaser Esam Hamdi, a Louisiana-born man of Saudi parentage who was captured in Afghanistan and incarcerated as an “enemy combatant” at the direction of the president. -- However, the court made that ruling only after professing strong deference to the powers of the presidency.

Applying the litmus test to these two decisions unequivocally eliminates one of the remaining associate justices, Souter. A nominee of George H.W. Bush, Souter joined the court’s most liberal member, Clinton nominee Ginsburg, in dissenting from the pro-executive branch Cheney decision. More significantly, in Hamdi, Souter aligned himself with her again in an opinion insisting that the power to detain a U.S. citizen in time of war belonged to Congress, not the president. Ginsburg and Souter even borrowed an historic jibe from Justice Robert H. Jackson: “The president is not commander in chief of the country, only of the military.” In short, Souter has taken a consistent stand with regard to the president’s power grabs, and it is not one that sits well with Bush.

But the surprise loser under the litmus test is Scalia, who strongly rejected the language of the plurality in Hamdi that professed obsequious deference to the president’s “executive powers” argument. In a dissent that eviscerated the president’s position, Scalia wrote: “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive.” Such powers as imprisonment, he noted, are placed in the control of Congress, not the president. In short, Scalia looked the president in the eye on the executive powers issue and did not blink. It was a remarkable display of intellectual honesty, at potentially enormous cost, by the justice who would have been the front-runner under a “moral values” litmus test.

Thomas, the only justice theoretically entitled to a perfect score under the litmus test, is also the justice whose appointment would no doubt incite Democrats to aggressively filibuster. And, even under the litmus test, Thomas has a serious problem: He went too far and damaged his own credibility. Standing alone among the nine justices of the court -- an unusual place for an associate justice better known as a follower than a leader -- Thomas boldly asserted in the Hamdi case that he could “see no principled distinction between the military operation the plurality condemns today (the holding of an enemy combatant based on the process given Hamdi) from a variety of other military operations.”

Unfortunately for Thomas, virtually everyone else can see the distinction between indefinitely incarcerating a U.S. citizen on American soil, without filing charges and without giving him an opportunity to defend himself, and conducting military actions in an active war zone. Thus, the very words that may have endeared Thomas to a president in search of ever-greater executive powers probably sealed his fate with the senators who would pass on his nomination.

With Souter and Scalia failing the litmus test, and Thomas having probably foreclosed any chance of Senate approval, the pool shrinks to one. Soft-spoken Kennedy was nominated by Reagan after Robert Bork went down in flames and Douglas Ginsburg withdrew because of past indiscretions (marijuana use). Kennedy, a staunch conservative at the outset who has drifted gradually toward the center, could almost be lost in the shuffle, not because of any lack of intellect or productivity, but because he is so ... well, uncontroversial.

Kennedy wrote the Cheney decision, which may have been the most successful executive power grab in half a century. Although he does not score perfectly under the litmus test because the Hamdi decision did not adopt the president’s position, he nonetheless does reasonably well.

At the end of Kennedy’s first full term, the Boston Globe described him as “even more conservative than Justice Antonin Scalia and Chief Justice William H. Rehnquist.” Five years later, he is the darling of neither liberals nor conservatives -- especially those social conservatives still reeling from his 2003 opinion in Lawrence vs. Garner, insulating the privacy rights of gays in their own homes. But to the extent any label now applies, he is a conservative listing significantly toward the center. In contrast to Rehnquist and Scalia, he has managed to escape a reputation as an ideologue. As such, he is acceptable to almost everyone, an indication not of mediocrity but of relative moderation.

If he is nominated, Congress will approve him, probably unanimously.

More important from the perspective of the White House, he will earn Bush political capital to spend on the nomination of a new associate justice who can shift the balance of the court further to the right and potentially exert influence for many more years than the new chief. It is a very favorable trade-off for the president. So favorable that those on the other side of the aisle should monitor the associate-justice nomination with extraordinary care.