Vacancy Fight Could Be Swift

Posted June 14, 2005 at 6:40pm

Girding for an imminent Supreme Court vacancy, some Senate Republicans are pushing to move the nominee through the Judiciary Committee in a matter of weeks rather than allowing more time for liberal opposition to mount throughout the summer.

And in one of the most intriguing twists, Sen. John Cornyn (R-Texas), a key member of Judiciary, said Tuesday that the White House is considering putting off announcing who the nominee is — if there’s an opening — until later in the summer to delay the amount of time liberal activists would have to attack the nomination.

“He might not make a nomination until the end of the summer, just before the August recess — the theory being that you don’t dangle someone out there like a piñata,” Cornyn said of President Bush’s considerations for the Supreme Court.

Under this scenario, a retirement announcement would come from a justice — all eyes are focused most intensely on Chief Justice William Rehnquist, who was diagnosed last fall with thyroid cancer — at the traditional time later this month at the end of court’s 2004-2005 term. At that point, rather than quickly nominating a replacement, the White House would hold off on announcing the pick until the end of July or early August.

That would still give the Judiciary Committee at least five weeks to prepare for hearings in early September and presumably leave time to get a nominee through committee and confirmed by the full Senate in time for the first day of the high court’s new session Oct. 3.

Judiciary Chairman Arlen Specter (R-Pa.) was traveling with Bush in Pennsylvania on Tuesday and was not available to comment on any potential nomination procedures. In an interview last week with NPR’s Nina Totenberg, Specter indicated that “tradition” would dictate that the retirement would come in June with a nomination soon after.

“The appointment [comes] some time pretty quickly thereafter in July. We prepare, go through all the details and have hearings in September,” Specter told Totenberg of past hearing procedures, according to a transcript provided by NPR.

But Republicans and their conservative allies are deeply concerned that nominating someone before July 4 and then not holding hearings until after Labor Day would allow too much time for liberal activists to mount a campaign attacking the nomination.

In particular, conservatives are still smarting from the beating that failed nominee Robert Bork took in 1987, when he was nominated July 1 — five days after the announced retirement of Associate Justice Lewis Powell — and hearings weren’t held until Sept. 15. Bork’s nomination went through 11 days of hearings at Judiciary, a modern record matched only by the 11 days dedicated to Justice Clarence Thomas’ nomination in 1991.

By the time Bork reached the floor for a vote in late October, his nomination was cooked, and he was defeated 58-42.

Whether the new nomination gets put forward in late June or late July, Senate conservatives say they want to be ready to move quickly to avoid anything like what happened to Bork.

“As long as it sits out there, it’ll be a dominating issue,” Sen. Sam Brownback (R-Kan.), a Judiciary Member, said of a new nomination. “That’s why I think we should move forward quickly and deliberately.”

Both conservative and liberal activists have been researching the records and writings of all the potential nominees to the high court. Within hours of any nomination, both sides expect to have ads either up on the airwaves or in newspapers outlining the credentials or the drawbacks of the potential justice.

People For the American Way raised more than $5 million for its campaign to fight to save the minority’s right to filibuster judicial nominees, money that the organization’s president, Ralph Neas, recently said was a great foundation to prepare for the Supreme Court battle.

Another key Republican, Sen. Jon Kyl (Ariz.), deferred a question on the timing of the nomination, and said that the entire process would be dictated by what Bush does.

“The whole question resides with the White House,” said Kyl, a Judiciary member and chairman of the Republican Policy Committee.

Some conservative allies of Brownback and Senate GOP leaders have been quietly pushing from the outside to try to wrap up the entire process of hearings and confirmation before the August recess, which is slated to begin July 29.

But recent history suggests that won’t be possible.

Of the last 11 Supreme Court nominations over the past 30 years, only one justice was ever confirmed inside a four-week time frame: John Paul Stevens, who was nominated Nov. 29, 1975, and confirmed less than three weeks later, 98-0.

Only one other Supreme Court nomination process went through confirmation in less than two months, according to a high court timeline provided by the Judiciary Committee.

Justice Ruth Bader Ginsburg was nominated June 14, 1993, approved by Judiciary five weeks later and confirmed 96-3 on Aug. 3.

Unless Rehnquist or another justice announced their retirement this week, the only way for Republicans to match the speed for Ginsburg’s confirmation this time would be to hold hearings and possibly a vote during the August recess — a thought that Brownback said might not be a bad idea.

“Maybe we end up doing some of that to move it forward,” he said.

But Democrats are quick to point out that then-President Bill Clinton consulted in advance with Sen. Orrin Hatch (R-Utah), who was the ranking member at Judiciary at the time, and Hatch gave his thumbs-up to the Ginsburg nomination.

To date, Bush has consulted with neither Minority Leader Harry Reid (D-Nev.) nor Sen. Pat Leahy (D-Vt.), the ranking member on Judiciary, according to Senators and aides.

“Not me,” Reid said Tuesday regarding consultation.

If there is no consultation prior to a nomination, Democrats say they will want a sufficient amount of time to examine the nominee’s writings and opinions, if he or she has previous judicial experience.

“It takes a while for Members of the committee to read all of the opinions,” Leahy said, promising to be fair on the issue of timing. “Nobody’s going to be trying to delay it.”

But Leahy vowed not to get steamrolled by Senate Republicans and the White House.

“If all you want to do is push someone through without asking questions, then you ought to hold the hearing an hour after you’ve made the announcement,” he said.

Setting aside Stevens, the shortest interlude between nomination and hearings before Judiciary in recent years belongs to Ginsburg’s five-week run. Rehnquist’s hearings to be chief justice in 1986 required just six weeks of preparation from his nomination until hearings were held in late July. But Rehnquist had already been on the Supreme Court as an associate justice since 1972.