There is no guarantee that George Bush will have the opportunity to fill a seat on the U.S. Supreme Court. Four out of the nine justices are more than 80 years old, however. The Constitution which these men are sworn to uphold and appointed to interpret does not require them to retire. But the higher law of nature will undoubtedly begin to require its due relatively soon. The stakes are so high for both liberals and conservatives that speculation has already begun on likely candidates for Bush to appoint to the country’s highest tribunal.
What — and who — is Bush looking for in a Supreme Court nominee? “I expect that he will follow the promises of the Republican platform,” answers Charles Rice, professor of law at the University of Notre Dame. The platform “reaffirms support for the appointment of judges on all levels who respect traditional family values and the sanctity of innocent human life.”
During the campaign, Bush told voters that he would appoint Supreme Court justices who are “conservative in philosophy, and moderate in temperament.”
“Primarily that’s just a good line,” claims Patrick McGuigan, senior scholar at the Free Congress Center for Law and Democracy. “It probably means that you pick people who look much like Anthony Kennedy — nobody will know what the guy’s political philosophy will be.”
“I doubt that Bush knows what it means,” said Steve Shapiro, legal director for the American Civil Liberties Union. “He is saying he wants a conservative moderate. I think we’ll just have to wait to see.”
Other observers of the legal scene, however, see nothing mysterious about Bush’s criteria. “It’s just the general qualification for a judge recommended by the American Bar Association—judicial temperament,” according to Doug Johnson, legislative director for National Right to Life. As for “conservative in philosophy,” Johnson says, that simply means “strict constructionists” rather than judicial activists —in other words, men and women very much like those chosen in the last eight years.
Douglas Laycock, professor of law at the University of Texas at Austin, thinks that Bush is more moderate in philosophy than Ronald Reagan and will choose judges who are conservative “in instinct,” but without any particular conservative philosophy of jurisprudence.
It’s generally agreed that Bush’s nominees to the Supreme Court ought to be, and probably will be, sitting judges on the federal circuit. There is no shortage of these to choose from. Reagan has appointed over 50 percent of the federal judiciary, and the men and women sitting on these benches are diverse enough to satisfy any ideological or political criteria that Bush may have in mind.
These criteria will have to include age, sex, race, and regional origin, as Bush attempts to maximize his influence on the Court, balance regional and minority interests, and at the same time please the Senate Judiciary Committee. For instance, if and when Thurgood Marshall resigns, there will be strong political pressure to appoint another black to the Court.
Experts also generally agree on who will not be named. During the election campaign there was some speculation on a Bork reappointment; Bush aides say that is unthinkable. Liberals such as Laurence Tribe and Ronald Dworkin, both of Harvard, have no chance at all, and will have to await a Democrat in the White House. Libertarians are in much less favor than they were in the Reagan administration; for example, Richard Posner has probably put himself out of the running with iconoclastic articles advocating a free market for unwanted infants.
There is a good bit of debate over who, in the new administration, will make the decision about Supreme Court nominees. “George Bush!” insists Bruce Fein, an independent scholar and writer on constitutional and legal matters. Appointment of Supreme Court justices is one of the most important and far-reaching responsibilities of the presidency, and George Bush is likely to want to oversee it closely. But the preliminary lists and decisions will probably be made by a committee that will include Boyden Gray, chief counsel to Bush; John Sununu, White House chief of staff, and Attorney General Richard Thornburgh. In addition, Thornburgh is likely to have an assistant secretary for legal policy whose primary responsibility it will be to identify worthy candidates for federal district courts, as well as the Supreme Court.
Boyden Gray is a long time Bush associate, generally a strong advocate of free markets and deregulation. He is regarded as indifferent to the pro-life issue but for that very reason will most likely defer to others on that question. Sununu is a tried and true conservative, and strongly pro-life. Conservatives and pro-lifers alike have been pleasantly surprised by Thornburgh’s performance as Attorney General during the last months of Reagan’s presidency.
Despite the theoretically large number of possible choices, informed, though hesitant, speculation grants real likelihood for appointment to only a handful of men and women who in the minds of the legal experts consulted for this article go beyond normal competence. They are named here in entirely random order.
Patrick Higginbotham, a judge of the Fifth Circuit Court of Appeals in Texas, was considered for the seat vacated by Lewis Powell, and is still on many people’s short list. Highly recommended by Texan Lloyd Bentsen, Higginbotham would probably be confirmed by the Democratic Senate without great difficulty. But what makes him acceptable to Democrats in the Senate could make him unacceptable to a fair portion of the Republican coalition.
“Higginbotham is Republican,” according to Laycock, “but he’s relatively unideological.” Laycock confirms the testimony of the Almanac of the Federal Judiciary that Higginbotham is well-respected by lawyers in his circuit. One lawyer polled by the Almanac dubbed him “a potential superstar.”
A graduate of the University of Alabama undergraduate and law schools, Higginbotham is considered an expert in antitrust law. He has written widely on this subject and on matters of court procedure. In 1987, however, Higginbotham wrote an opinion upholding, on narrow grounds, the district court’s ruling against a Louisiana law restricting abortion. He noted the strong criticism of the Supreme Court’s abortion jurisprudence, but affirmed the circuit court’s duty to apply appropriate precedent rather than follow an independent line of evaluation. This decision will almost certainly cost him, and therefore Bush, the support of most pro-lifers.
Another man frequently mentioned as Supreme Court material is San Diego-based J. Clifford Wallace of the Ninth Circuit. “Wallace has been campaigning for the Court for twenty years,” according to Fein, and he has reportedly made it onto the official short list for several of the openings in recent years. But for precisely that reason, some think his chances are slim of making it onto the Court during Bush’s administration.
“If he was going to be chosen, it would have been done by now,” says Michael McConnell, professor of constitutional law at the University of Chicago. And as McGuigan notes, his appointment is less likely with every passing year. At 60, the actuarial tables do not give him too many more years in which to influence the Court, especially if Bush does not have the opportunity to appoint a justice during this term.
In every other respect, however, Wallace is an excellent and confirmable choice. He was among the earliest and most lucid exponents of judicial restraint and interpretivism, and is well respected by his peers. Lawyers quoted in the Almanac describe him as tough, bright, a good writer, well-prepared, and “outstanding across the board.” An active Mormon, Wallace is described by a former law partner as “conservative and definitely a law and order, free enterprise guy.”
The one woman being talked about in unofficial circles is Texas-based Edith Hollan Jones, another judge from the Fifth Circuit. Her appointment would take some courage — she is young, which is likely to make Senate Democrats wary of her influence over a long tenure; she is relatively inexperienced, with only three years on the federal bench so far; and her previous legal career was entirely with one law firm. But given her intelligence, her appointment could have the impact of “a female, Texan William Douglas,” claims McGuigan. “They’d have to assign her a food taster for the next 40 years.”
Jones received her bachelor’s degree from Cornell University in 1971, and her law degree, with honors, from the University of Texas. She was a law partner of Secretary of State James Baker for eleven years, specializing in commercial and bankruptcy law. Lawyers who have argued before her say she’s off to a good start, and legal experts all agree on her intelligence.
Part of Jones’s appeal is that she does not have a reputation that has preceded her to the general public. Ideologically, her appointment would be on the order of Anthony Kennedy’s, with no one really sure of her position on certain key Issues.
The D.C. Circuit Court of Appeals has been a regular breeding ground for Supreme Court nominees. Bork was a member of this court when he was nominated, and Douglas Ginsberg continues in his position there. Now three more D.C. Circuit judges are considered likely candidates for Bush’s short list.
Laurence Silberman received national attention recently as the author of a brief criticizing the institution of the independent counsel as an unconstitutional breach of the separation of powers. The brief was considered brilliant by many, but the argument was nevertheless rejected by the Supreme Court.
At age 55, Silberman has great breadth of experience: he has served in several government positions, notably as deputy attorney general during Watergate, an office he fulfilled with honor. He is regarded by all as very intelligent, but according to some may be more bubbling in “judicial temperament” than is usually seen in a Supreme Court justice. “He’s too bumptious, but very capable,” says Fein.
Silberman is not likely to be very popular with the political left. Besides his brief on the independent counsel, which bore directly on the Iran-Contra affair, Silberman has penned critiques of Jimmy Carter’s foreign policy on the Panama Canal and Central America.
James L Buckley
Another name on the winds is James Buckley, former senator from New York, former president of Radio Free Europe/Radio Liberty, and, like his brother William F., a graduate of Yale. Appointed to the Fifth Circuit in 1985, Buckley is generally considered hardworking, bright, knowledgeable, courteous, and articulate.
While president of Radio Free Europe, Buckley achieved considerable notoriety by his leadership of the U.S. delegation to the U.N. Conference on Population in Mexico City in 1984. Buckley horrified liberals and cheered the pro-life community by announcing U.S. opposition to abortion as a means of family planning and by arguing that a strong economy is “the natural mechanism for slowing population growth.”
He has not published widely, but in his book If Men Were Angels: A View from the Senate (1975), Buckley expressed his opposition to the activism of the Warren Court on such issues as school prayer, pornography, one-man-one-vote, court-ordered desegregation, and the Miranda rulings. All of these things considered, Buckley’s nomination would probably be controversial, according to Jeremy Rabkin, associate professor of government at Cornell University, but ultimately confirmable, by McGuigan’s reckoning.
Kenneth W. Starr
Judge Kenneth Starr of the D.C. Circuit may have the opposite problem, says Rabkin. While he has made no “wrong moves,” his positions are also generally unknown. “If he ran into trouble on his confirmation, he wouldn’t have any constituency running to his defense,” Rabkin says. On the other hand, Starr’s non- ideological manner has earned him what McConnell calls a “sterling reputation across the political spectrum,” won by his common sense and his attention to traditional legal principle.
A graduate of Brown University Law School and former clerk to Chief Justice Warren Burger, Starr is popular with lawyers for his common sense approach to the law. At age 42, he may face opposition on the basis of his youth, but Starr has accumulated a good depth of experience, including five years on the D.C. Circuit, and, according to Fein, he has the intelligence and writing ability to be a real leader on the Court.
Another potential nominee, and the only one mentioned who is not a judge, is Orrin Hatch. Hatch was on everyone’s short list after Bork’s nomination went down in flames and continues to be a possibility, despite the general predisposition to pick a federal judge for the Court position.
Born in Pennsylvania, Hatch received his undergraduate education at Brigham Young University and his legal education at the University of Pittsburgh. A member of the Senate since 1977, he exercised considerable influence as the chairman of the Labor and Human Resources Committee while Republicans held a majority in the Senate.
Until recently, Hatch was one of the favorite sons of conservatives and especially of the pro-life movement. But Bush may find that Hatch is a less popular choice now. “There’s a lot of support for Orrin, but it’s more mixed now than it was a year ago,” says McGuigan. “A lot of conservatives are ready to oppose his nomination because of what he did on the ABC Child Care Bill.” Hatch offered a compromise bill to the Democratic one which many feel undermined the more pro-family Holloway and Schultz bills. The fact that Hatch is not a judge, when there are so many qualified federal judges, also makes him a less appetizing candidate.
James Harvie Wilkinson
James Harvie Wilkinson, of the Fourth Circuit in Virginia, is a preferred candidate of some legal experts. “He’s an interesting prospect,” says McConnell. “He has emerged as the intellectual giant of the Fourth Circuit and is one of the leading lights among the new court of appeals judges.” Wilkinson had a very tough confirmation battle for his appeals court seat and received more negative votes than any other nominee who had been confirmed up to that time. But he has performed so well on the court that he may have left allegations of his inexperience behind him.
Born in 1944, Wilkinson received a bachelor’s degree from Yale and a J.D. from the University of Virginia. He served as clerk to Justice Lewis F. Powell, taught at the U.V.A. law school, and served as deputy assistant attorney general, civil rights division, from 1982 to 1983. Lawyers surveyed by the Almanac describe him as articulate, courteous, well-prepared, and an exceptional writer.
Another man that some think would be an impressive addition to the Supreme Court is Roger Miner of the Second Circuit of Appeals. “He’s a very good judge,” claims Fein, “and has written extensively.” At the age of 54, he has served as judge advocate for the army, practiced law for 16 years, held office as a government attorney in Hudson, New York, and Columbia County, and taught at several colleges. He has been on the Second Circuit since 1985.
“[Miner] would be a very conciliatory gesture to Democrats in Congress,” McConnell thinks, “But I don’t think he would be very popular with conservatives.” One move which conservatives are unhappy with is Miner’s refusal to appoint a legal guardian for Baby Jane Doe, a handicapped infant who was being denied treatment. Adding insult to injury, Miner imposed a $500 fine on the lawyer who brought the action.
John T. Noonan
Eminently qualified for nomination is John T. Noonan, member of the Ninth Circuit Court of Appeals. With a list of degrees and honors starting with Harvard, going on to Cambridge, Catholic University, and Notre Dame, Noonan is widely regarded as “a brilliant scholar,” and in his first few years on the Court of Appeals, “a great judge.” He is also, incidentally, the most conspicuously Catholic of those mentioned. He has been a teacher of theology and is active in the area of canon law.
Could Noonan’s conspicuous and articulate Catholicism reduce his chances of being appointed? He has written prolifically on the morality and jurisprudence of abortion, and it may be that those who panicked over the possibility that Bork would oppose Roe v. Wade would go into a frenzy over the certainty of Noonan’s pro-life position. Still, Bush was nothing if not clear on this position during the campaign. Noonan is precisely the scholarly, civilized type who could satisfy Bush’s judicial criteria.
These are only a few of the names being mentioned, but they demonstrate the wide range of quality candidates that Bush has to pick from, should he have the opportunity. The next four years will make interesting jurisprudential theater, with far-reaching consequences for all of us.