Frist Calls on Senate to Approve Supreme Court Nominees Before August Break

Posted June 26, 2003 at 10:18am

Heightening anticipation of a potential Supreme Court vacancy, Senate Majority Leader Bill Frist (R-Tenn.) on Thursday outlined an ambitious schedule for the chamber’s handling of what would likely be a very contentious nomination battle, demanding that the full Senate vote on a nominee before the August recess.

In a letter to the entire Senate, Frist told his colleagues that they should expect to follow the model for Supreme Court nominations used by the Clinton administration, when both Justices Ruth Bader Ginsburg and Stephen Breyer were confirmed before the chamber left town for its annual summer break.

“Consistent with that schedule, if there is a retirement at the end of the Supreme Court’s term and a nomination is submitted shortly thereafter, I anticipate the Judiciary Committee would hold hearings in July and the full Senate would vote on the nomination before the Senate recess in August,” he wrote.

Rumors have persisted that at least one justice would retire at the end of the current session, which reaches its conclusion today.

Frist makes no mention of the odds of a vacancy occurring or which justice or justices would retire, but his aggressive timeline for confirmation will only serve to put Supreme Court watchers on an even higher alert. Most eyes are on Chief Justice William Rehnquist, 79, and Associate Justice Sandra Day O’Connor, 73, with a potential O’Connor retirement having the most explosive impact on the nation’s political scene.

A Rehnquist retirement would likely bring a conservative nominee, most observers believe, and since Rehnquist hails from the conservative end of the bench such a move would not alter the court’s makeup much. O’Connor, however, is solidly in the middle of the court ideologically speaking, a position she reaffirmed with her swing vote Monday in favor of the University of Michigan Law School’s affirmative action admissions plan.

An O’Connor retirement has the potential to alter the court’s balance if her replacement is considered solidly conservative. Senate Democrats, as well as their allies at liberal interest groups, would likely put up a vigorous fight over the nomination, one that could lead to a dramatic filibuster attempt. The last Supreme Court justice to face a cloture vote was Rehnquist in 1986, when he was elevated from associate justice to chief, and the last to lose during a filibuster was Associate Justice Abe Fortas, who was nominated for an elevation to chief in the Johnson administration.

In the event of a contentious nomination battle, Frist’s schedule would be difficult, if not impossible, to achieve given an Aug. 1 start to the recess. Democrats have pointed to the Ginsburg and Breyer nominations as examples for President Bush to follow, but in doing so have contended that he needs to consult with them beforehand to ensure he picks a nominee who will not result in a bitter round of hearings and a major floor fight.

With three leading Senate Democrats now having pleaded with the White House for advance consultation — Edward Kennedy (Mass.) yesterday joined Minority Leader Tom Daschle (S.D.) and Pat Leahy (Vt.), the ranking member of the Judiciary Committee, with a letter requesting consultation — the White House has followed up with one letter and one meeting. White House Counsel Alberto Gonzalez, himself a potential nominee, sat down with Leahy last week in a meeting on which the Senator declined to elaborate.

In the weeks leading up to the Ginsburg and Breyer nominations in 1993 and 1994, President Bill Clinton spoke with Sen. Orrin Hatch (R-Utah), then ranking member at Judiciary, and Hatch signaled that Ginsburg and then Breyer would get the smoothest sailing in the confirmation process. Both justices were confirmed with large, overwhelming majorities.

The stakes are very high for any confirmation battle, including for how Congress conducts its political business. The Supreme Court is set to hear the groundbreaking campaign finance case in early September, and if a replacement is not on the court by then, there would be the potential for a 4-4 split.

Interest groups on each side of the fight have been aggressively researching the records of potential nominees and stockpiling money for a television ad campaign. The right-leaning Committee for Justice is holding a small-dollar fundraiser Friday evening at 101 Constitution Ave. NW with the president’s nephew, George P. Bush, as the headlining speaker.

On the left, abortion rights activists have created what they call the Joint Emergency Campaign, a fund devoted solely to fights over the federal judiciary. Initially seeded with $5.5 million, estimates for how much is left in the fund have ranged from $1.5 million to $5 million. The groups initially told Roll Call earlier this month that the fund was a 501(c)3, but it is actually more of an informal account with each division setting aside part of its own budget for the court battles.

Regardless of the amount, the groups intend to be on the air within hours or days of a nomination announcement.

In his letter, Frist also sought to put Democrats on warning regarding any potential filibuster, an issue that has rankled the Senate throughout the year as Democrats are actively filibustering two of Bush’s circuit court nominees, with the threat of filibuster on two or three more. Republicans have talked about a specific rule change that would forbid filibusters on judicial nominees, and passed a plan out of the Rules and Administration Committee this week. But it has nowhere near the 67 votes needed for approval, and some Republicans are hesitant to support the plan.

Still, Frist vowed to make the confirmation process as speedy as possible.

“The Senate has few Constitutional responsibilities as important as exercising its advice and consent on a President’s nominee to the Supreme Court,” Frist wrote. “I look forward to working with each of you to ensure a fair and orderly Senate process in the event of a Supreme Court nomination this summer or in the future.”