High Court Fight Could Heat Up Senate’s Summer

Times Staff Writer

Facing the possibility of two Supreme Court vacancies, the Senate appears headed toward a long, hot summer, politically speaking, that threatens to push other legislative business aside.

When the chamber reconvenes today, its first order of business is expected to be a bipartisan effort, in the aftermath of last week’s bombings in London, to increase security funding for mass transit.

Congressional leaders also have ambitious hopes of working out House-Senate differences on an overhaul of energy policy and a highway bill -- along with completing a draft of Social Security legislation -- before they break for their August recess.


But all that is expected to be overshadowed by the looming fight over the Supreme Court, where the retirement of Justice Sandra Day O’Connor has created the first vacancy in nearly 11 years.

“Some issues will be crowded out,” Don Stewart, an aide to Senate Judiciary Committee member John Cornyn (R-Texas), said Sunday. “But frankly, it’s up to the Democrat leadership: They can cooperate and have full, thorough hearings followed by floor debates and a vote, or they can shut the place down until Christmas and explain to their constituents why other priorities were not completed.”

The sparks anticipated during confirmation hearings were evident Sunday as Judiciary Committee members clashed over the types of questions they should be permitted to ask.

Sen. Charles E. Schumer (D-N.Y.) said lawmakers should have wide latitude to ask tough questions about a range of legal issues. “Given the power of the Supreme Court,” he said on NBC’s “Meet the Press,” “we have an obligation to understand their views.”

Appearing on the same program, Sen. Orrin G. Hatch (R-Utah) shot back: “You can ask any question you want ... no matter how stupid the question may be.” But Hatch, a former chairman of the committee, said nominees could choose not to answer out of concern that their responses would prejudge matters that might come before the court.

“I really do believe that a justice ought to say, ‘Senators, I’d like to answer that for you, except ... I haven’t heard the facts. And frankly, I shouldn’t be making up my mind in advance and, if I did, you wouldn’t want me as a judge,’ ” Hatch said.

Schumer released a letter, signed by a dozen legal scholars, that he said supported his view that it was appropriate to question a nominee’s views on constitutional issues.

“It is hardly possible that a person could achieve nomination for appointment to the United States Supreme Court and yet have no opinions about the significant constitutional issues and cases of our day,” the letter said. “And the fact that the nominee does have such opinions and voices them will not undermine impartiality or the appearance of impartiality such that he or she would be disqualified when those issues or cases come before the court.”

President Bush, who is preparing his list of potential candidates, is scheduled to meet Tuesday at the White House with senators from both parties.

“The consultation should be real,” Schumer said. “It shouldn’t just be, ‘Hi, do you have any names that we should consider?’ It should be a back and forth.”

But Hatch said Democrats wanted to “pick the nominee.”

He said that in 1993, when he was the ranking minority member of the Judiciary Committee, President Clinton consulted him on potential candidates for a court vacancy. But, he added, “I wasn’t making demands. I wasn’t demanding that I help pick the judges. I didn’t make threats of filibustering.”

Although Democrats expect Bush to nominate a conservative, Schumer said, “We will not roll over if they choose an extreme nominee.”

Sen. Mark Pryor (D-Ark.), who was among 14 senators who signed a recent bipartisan agreement to preserve the filibuster for judicial nominations in “extraordinary circumstances,” resisted efforts to pin him down on what the term meant.

Some Republicans who signed the agreement said they did not believe that a nominee’s ideology justified a filibuster. But Pryor told ABC’s “This Week”: “It is to some extent subjective.”

Adding to the contentious atmosphere is the speculation that Chief Justice William H. Rehnquist will join O’Connor in retiring.

Hatch predicted that the 80-year-old chief justice, who has thyroid cancer, would retire before the end of the year.

But Sen. Arlen Specter (R-Pa.), the Judiciary Committee chairman, told CBS’ “Face the Nation” that he expected Rehnquist to serve as long as his health held up.

“Being engaged in a bout with cancer myself,” said Specter, who has been undergoing chemotherapy for Hodgkin’s disease, “I know that it’s good to get up every morning and have something that you have to do, something that is important to do.

“If the chief’s health holds up, I think he’ll stay, but I believe he may not know that really from one day to the next, one week to the next, one month to the next,” Specter added. “But I think he’s going to stay as long as he can.”

If Rehnquist does retire soon, it would be the first time since September 1971, when Justices Hugo L. Black and John M. Harlan retired within a week of each other, that there would be two vacancies on the high court.

The Supreme Court “certainly will be the biggest thing we do all year -- more so if we have tandem nominees,” said Stewart, the aide to Cornyn. “But the Senate can move with alacrity if it wants to, and it can do more than one thing at a time.”