A December Court Battle?

Posted September 16, 2005 at 6:33pm

The White House and Senate Republicans are facing a tight calendar as President Bush eyes his second pick for the Supreme Court, a nomination process that could last well into December under even the rosiest of scenarios.

With John Roberts apparently cruising to confirmation as chief justice of the United States — Minority Leader Harry Reid (D-Nev.) last week said Democrats could cast an “individual vote” of their own conscience — the next Supreme Court battle is shaping up as the bigger fight with broader implications for both the court and the Senate.

GOP aides said last week that the White House has set twin timelines for the Supreme Court nominations, the first being the installation of Roberts as chief justice before the court’s new term starts Oct. 3. The second goal is having the next selection on the court by the end of the year at the latest, which could mean a floor fight in December over that nomination.

White House officials have not spelled out when the announcement of the next nominee will come, and there are differing schools of thought on how best to move ahead given the already packed agenda confronting Congress between now and year’s end.

Judiciary Chairman Arlen Specter (R-Pa.) has told reporters that he does not want the next nomination sent to Capitol Hill until after Roberts has been confirmed by the Senate, which is not set to occur until the final week of this month. But some GOP strategists are concerned that waiting until after the confirmation of Roberts would almost certainly mean the full Senate would not be able to take up the second court selection until after Thanksgiving.

On Friday Bush invited Majority Leader Bill Frist (R-Tenn.), Reid, Specter and Sen. Patrick Leahy (D-Vt.), ranking member on Judiciary, to the White House for a Wednesday meeting to discuss the nomination to succeed retiring Associate Justice Sandra Day O’Connor. Some GOP strategists said this meeting signaled Bush wanted to move quickly on the next nominee and finish the process before Thanksgiving.

Before the Roberts nomination, the president or his top advisers spoke with more than 70 Senators about the selection, a consultation process that the GOP hailed as unprecedented.

Senate Republicans were particularly pleased with Bush’s first consultation effort because it helped defuse the Democratic argument that the president wouldn’t consult with them on the selection. Few Republicans expect Bush to engage in as lengthy a consultation process this time, because he so recently went through it before the Roberts announcement. But GOP aides privately said they want him to do enough this time to ensure that the consultation argument from Democrats will once again be defused.

If Bush waits until after Roberts clears the Senate to announce the new pick, the week after Thanksgiving would be the earliest the full Senate would take up the nomination, according to recent history of nomination fights.

As of now, GOP leaders have avoided talk of being in session in December, although House Majority Leader Tom DeLay (R-Texas) recently acknowledged that Congress would likely be in session until Thanksgiving.

Of the previous 11 Supreme Court nominations in the past 30 years, only one justice was ever confirmed within a four-week time frame: John Paul Stevens in 1975. Justice Ruth Bader Ginsburg was confirmed in seven weeks in 1993, and all other nominees took more than two months.

Barring bombshell revelations, Roberts, nominated July 19, will take about two and a half months to be confirmed.

In general, it has taken six weeks for hearings to start for a Supreme Court nomination.

With that in mind, some Republicans would prefer an earlier announcement of the next pick, which could set in motion a timeline for hearings to be held in early November with a floor vote before Thanksgiving. Otherwise, an early October announcement will likely mean Judiciary Committee hearings just before Thanksgiving and at least the Senate returning to handle the Supreme Court nomination in December.

Such scenarios, of course, rest on the assumption that the next nominee proceeds along in reasonably non-controversial fashion, as Roberts has. Many Democrats and Republicans are anticipating a bigger fight since the next pick will be taking the seat of O’Connor, a key swing vote who supported abortion right in her rulings.

“That’s the one, the one I think the left throws everything they have at it,” Sen. Sam Brownback (R-Kan.), a Judiciary member, said of the second selection.

If that turns into a bigger fight, Specter could be forced into more than four days of hearings in Judiciary — as he did with Roberts last week — and Frist could be forced into an extended floor debate, pushing the final vote on the new nominee deep into December.

The two biggest battles in recent Supreme Court history involved Robert Bork, who ultimately lost his nomination bid, securing just 42 votes, and Justice Clarence Thomas, who was approved on a 52-48 ballot.

Bork’s entire nomination process took almost four months from the day his selection was announced on July 1, 1987, while Thomas took three and a half months to be confirmed.

“John Roberts is not a Bork or a Thomas,” Brownback said.

Even Reid seems to agree with that sentiment. After the Roberts hearings concluded Thursday, Reid said that he himself had not decided how he will vote, a message he also delivered to the heads of liberal activist groups who gathered in his office late Thursday afternoon.

In addition, Reid said that the actions of the Judiciary Democrats would not on their own be overly indicative of how the rest of the Democratic Caucus would vote.

“It all boils down to an individual vote. It’s all an individual thing for me,” Reid said of his thought process, adding that the panel’s Democrats would be influential but not decisive in steering the Caucus. “They’re not going to be determining how I vote.”

In the 108th Congress, then-Minority Leader Tom Daschle (D-S.D.) instituted an unofficial policy, according to Judiciary Democrats, essentially saying that if every Democrat on the panel opposed a judicial nominee, that candidate would be filibustered.

Reid appears to have abandoned that practice, and some Democrats who are openly supporting Roberts say the committee’s Democrats won’t determine whether there is any support for a filibuster.

“His performance in the hearings has done nothing but strengthen my positive feelings,” said Sen. Kent Conrad (D-N.D.), who is now “leaning even more strongly” to backing Roberts.

Conrad predicted a “strong number of Democratic votes” would go Roberts’ way, with roughly half the Caucus backing him and giving the nominee between 75 and 80 votes.