Court Battle Lines Drawn

Times Staff Writers

Senators from both parties jostled Sunday to define the rules of engagement in the political struggle over President Bush’s first Supreme Court nomination.

In appearances on all the Sunday talk shows, members of the Senate Judiciary Committee sparred about whether nominees should be asked their views on specific issues such as abortion; whether it was appropriate to apply more scrutiny to nominees who would change the court’s balance of power; and what circumstances, if any, might justify a filibuster against Bush’s eventual choice.

The partisan disagreements on so many issues, before Bush has selected his nominee to succeed retiring Justice Sandra Day O’Connor, underscore the conflict that may be ahead if the president’s choice does not attract broad bipartisan support.


Indeed, on Sunday, senators and representatives of conservative and liberal interest groups even disagreed on whether Bush should feel obligated to select a nominee acceptable to both parties.

Adding to the edgy tone were continued signs of divisions among conservatives about Atty. Gen. Alberto R. Gonzales, widely considered one of the leading contenders for the nomination. C. Boyden Gray, who heads a broad conservative coalition that is supportive of Bush’s judicial appointments, said he would support Gonzales if nominated. But a leading social conservative said there was “not a lot of enthusiasm” on the right for his selection.

“There is concern on the right, there’s no doubt about it,” Jay Alan Sekulow, chief counsel for the American Center for Law and Justice, a conservative group that specializes in religious rights, said on CBS’ “Face the Nation.” He added that Gonzales, who made a surprise trip to Iraq over the weekend, was doing a “fantastic job” at the Justice Department -- and that Bush should keep him there.

The right is wary of Gonzales, seeing him as a supporter of abortion rights and affirmative action, based on his decisions while a Texas Supreme Court justice and his actions as White House counsel.

Democrats, meanwhile, have said that Gonzales’ role in developing Bush administration policies on handling detainees in U.S. prisons in Iraq and at Guantanamo Bay, Cuba, could cause difficulties similar to those that complicated his nomination as attorney general this year.

White House aides have said Bush will announce his choice for the court after he returns from this week’s Group of 8 summit of industrialized nations in Scotland. Bush is to leave Tuesday and return Friday evening. He has scheduled a July 11 meeting on the court with Senate leaders from both parties, and Sen. Orrin G. Hatch (R-Utah), a former Judiciary Committee chairman, told CBS that he expected Bush to reveal his decision “maybe even the same day or within a day or two.”


On ABC’s “This Week,” the current chairman, Sen. Arlen Specter (R-Pa.), said he would be flexible on whether to schedule the confirmation hearings for the nominee in August or September.

“Our duty is to get this confirmation done by the first Monday in October,” Specter said. “That’s when the court starts in session, and we are going to meet that duty.”

Some of the sharpest exchanges Sunday involved whether the nominee should be required to disclose his or her views on specific issues that could come before the court, such as abortion or same-sex marriage.

One senior Senate GOP aide told The Times on Saturday that Republicans believed the nominee should not be pressed to disclose views on specific cases. On Sunday, the Washington Post reported that GOP aides to the Senate Judiciary Committee had circulated a memo making that argument.

Sen. John Cornyn (R-Texas) said Sunday on ABC: “It’s completely inappropriate to ask nominees to make promises to politicians about how they’re going to vote, should a case come before them. And it’s also wrong to ask a judge -- not knowing how the case would be postured, what the facts would be -- to prejudge these issues before they have a chance to hear all the evidence.”

But Cornyn seemed to crack open the door to asking nominees about Roe vs. Wade, the decision that guaranteed legal access to abortion, and other Supreme Court precedents: “I think it’s an appropriate question to ask what their views are on cases that have been decided and judicial opinions that have been written.”


Appearing with Cornyn, Sen. Charles E. Schumer (D-N.Y.) said the panel had a responsibility to broadly probe the nominee’s legal views and ideology.

“This is such an important position, the U.S. Supreme Court,” Schumer said. “With a flick of a pen they can change people’s lives. I think it’s a dereliction of our responsibilities if we don’t ask these kinds of questions.”

Schumer added: “To take one person’s writing 30 years ago and say that disqualifies them, that’s wrong. But to then just say, ‘OK, tell us where you went to law school and what your career was; and have you ever broken the law? You’re on the Supreme Court’ -- no way.”

Sen. Joseph R. Biden Jr. (D-Del.), chairman of the committee when his party last controlled the Senate, told CBS that he didn’t think “we should be talking about the outcome of specific cases” but instead should assess “what methodology a judge will use” in deciding cases.

In a view rejected by Republicans and conservative activists, Biden also argued that this nomination called for additional scrutiny because the nominee could change the balance of power on a court where O’Connor had frequently functioned as the swing vote.

Biden said the likelihood that the nominee would shift the court’s balance “probably” made it more likely that Senate Democrats would filibuster a choice that drew broad opposition in the party.


But Sen. Lindsey Graham (R-S.C.), one of the architects of the recent bipartisan deal by 14 moderates that preserved the filibuster for judicial nominations in “extraordinary circumstances,” strongly warned Democrats against trying to use the delaying tactic on Bush’s nominee. The filibuster allows a Senate minority to block consideration of legislation or a nomination with 41 votes.

Appearing on “Fox News Sunday,” Graham said that disagreement with a nominee’s legal views would not meet the deal’s standard for filibustering judicial appointees.

“Ideological attacks are not an extraordinary circumstance,” he said. “To me, it’d have to be a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent.”

If Graham and one other Republican signatory changed their minds about the deal, GOP Senate leaders probably would have enough votes to ban filibusters of judicial appointments. Sen. John McCain (R-Ariz.), another of the deal’s authors, has already issued similar warnings.

In one more clash, Democrats repeatedly urged Bush to nominate what they called a “consensus candidate.” On ABC, for instance, Sen. Edward M. Kennedy of Massachusetts called on Bush to select “someone that can bring the country together, someone that can rally the Republicans and Democrats.”

But on CBS, the conservative Sekulow ridiculed the idea that Bush needed to find a nominee who could appeal to both parties. “This idea that we’ve got to have a consensus candidate ... is ridiculous,” he said. “The president has the authority. The Senate can say yes or no.”