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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Friday, July 1
 
Who Will Be the Next Justice(s)?
All eyes are focused on the United States Supreme Court today. The most powerful woman in the United States, Associate Justice Sandra Day O'Connor, announced her retirement this morning.

Whoever is nominated to replace her can expect to have a major impact on voting rights, including such issues as the constitutionality of the Voting Rights Act, racial gerrymandering, partisan and incumbent gerrymandering, and campaign finance regulations -- not to mention such statutory questions as how the Help America Vote Act should be interpreted, whether it provides a private right of action, and the permissibility of such practices as felon disenfranchisement and ID requirements under the Voting Rights Act. I therefore hope you'll indulge me in sharing some thoughts over who the next nominee or nominees might be, even though it's outside the usual scope of this blog.


Should I Stay or Should I Go?

Who will be nominated depends in large measure on whether there will be one or two slots for President Bush to fill. There has been considerable speculation that Chief Justice Rehnquist would step down, and it's still not known whether he'll retire before the next term starts in October. The Washington Post has this story on the question of the Chief's retirement -- along with some nifty old pictures of both Rehnquist and O'Connor from their days at Stanford, where the then-justices-to-be-now-soon-to-be-ex-justices once dated.

Rick Hasen argues that it would make sense for the Chief to retire now so that the two new nominees can be sold as a package. On the other hand, Lyle Denniston of SCOTUSblog tentatively predicts that the Chief will remain, to avoid the prospect of having two vacancies on the Court.

I have no clue what the Chief's plans are but would expect that, if he does plan to step down, an announcement will come within the next few days, so that there's an opportunity for two nominees to be selected and confirmed before the next term. We should therefore know shortly -- I'd say by the end of next week -- whether there will be one or two vacancies to fill before the October 2005 term commences.

What follows is my thinking on who'll be appointed, first if the Chief stays and next if he goes. For those who are impatient, my bottom-line predictions appear at the end of this post.

If the Chief Doesn't Step Down . . .

Had Chief Justice Rehnquist been the first to retire, I would have predicted Judge Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit as the nominee. His profile, along with those of several other rumored candidates, can be found on Slate.com. Judge Luttig is very smart and very conservative, in the mold of Justice Scalia, and fairly young (51). He can be expected to be a reliable vote on virtually every issue of importance to the Republican base, including national security, race, religion, criminal law, and state sovereignty.

The fact that Justice O'Connor was the first to resign changes the calculus considerably. While Chief Justice Rehnquist is an unflinching conservative, Justice O'Connor is more of a moderate-conservative, most conspicuously on such hot-button issues as abortion and affirmative action. She has been the swing vote on many cases which, as SCOTUSblog notes, could be overturned as the result of her retirement.

The White House may go with a far-right choice such as Judge Luttig or, perhaps more likely, Judge Edith Jones of the Fifth Circuit. (I say "more likely" because Judge Jones is as far to the right as Judge Luttig, but a woman which makes her more appealing as a replacement for Justice O'Connor. ) Another possibility is former Solicitor General Ted Olson, who argued Bush v. Gore but may be viewed as too old. Any of these three choices would be an aggressive move on the part of the President. A Luttig, Jones, or Olson nomination would almost surely lead to a Democratic filibuster and an extremely bitter partisan fight. Of course, the White House may be willing to take on that fight, figuring that they have little to lose.

Nevertheless, I think that the most likely choice is Judge Emilio Garza of the Fifth Circuit, who is also profiled on Slate.com. Judge Garza is quite conservative, though perhaps slightly less reliably so than Judge Luttig, Judge Jones, or Mr. Olson (note the emphasis on both "perhaps" and "slightly"). He'd be a sure vote to overturn Roe v. Wade and Casey's abortion holdings, but would be very difficult for the Democrats to oppose because he is a Latino. This would also make him a history-making candidate for President Bush, and would also shore up a constituency that's vitally important to future Republican success in the rapidly growing southwest.

Another Latino prospect, whose name is more often mentioned, is Attorney General Alberto Gonzales, profiled here on SCOTUS blog and here by Slate.com. The President's a big fan, but I don't think it will happen. Gonzales is a nominee who would give Democrats plenty of ammo because of his connection to memos regarding detainees and torture, while displeasing hardcore Republicans because he's not viewed as reliable on abortion or affirmative action. I also doubt that the President would nominate him so soon after his unexpectedly bruising confirmation battle as Attorney General . . . though he could be nominated for the Chief's slot if (a) the Chief doesn't retire for at least another year, and (b) a far-right female judge, like Judge Jones, is confirmed for O'Connor's slot.

If the Chief Does Step Down. . .

If there are two slots rather than just one to fill before the October 2005 term, then a dramatically different set of considerations comes into play. The Court will be losing both a reliably conservative vote in the Chief and its most frequent swing vote in Justice O'Connor.

While I have no prediction on whether the Chief will retire, if he does, I think Rick Hasen is right that the two new nominees will be sold as a package: "one, more conservative, to replace the Chief, and one more moderate (or perhaps simply of unknown qualities) to replace Justice O'Connor." Actually, I think that the second nominee would be "of unknown qualities" rather than a known moderate. It will be someone who satisfies the conservative base, without the sort of judicial record that will be easy for Democrats to attack.

Also, if there are two openings, at least one of the nominees is likely to be a woman. Decreasing the number of women on the Court, at a time when there are no additional openings on the horizon, is not a move that this politically savvy administration is likely to make. So while some might object to the somewhat gender-specific analysis that follows, I think that's realistically how the White House will assess things.

If I'm right on these two points, then one possibility is pairing a far-right nominee like Judge Luttig with a relatively unknown woman. The most likely nominee in the latter category would appear to be Judge Edith Brown Clement of the Fifth Circuit, profiled here on SCOTUSblog and on Slate.com. She's only been on the Fifth Circuit since 2001, and before that was a federal district judge in Louisiana. This gives her substantial experience as a federal judge but less of a record on hot-button cases than other potential nominees, making it more difficult for Democrats to find ammunition.

Another possibility is pairing a very conservative woman with a relatively unknown (or moderate) nominee, who could be either male or female. Here, the most likely prospects for the super-conservative slot are Judge Jones and Judge Janice Rogers Brown, just confirmed to the D.C. Circuit as part of the deal that avoided the so-called "nuclear option." She's African-American and as reliably conservative as Luttig, Jones and Olson, though somewhat more suspect in her intellectual caliber. Also, I think her being so recently confirmed after a messy fight makes her a less likely choice.

If an archconservative woman like Judge Jones is chosen, the President has a lot of options for the other slot, including Judge Garza, Judge Clement, or A.G. Gonzales. There's also been speculation about Judge J. Harvie Wilkinson and Michael McConnell, both profiled by Slate.com. Both are doubtful, if you ask me. They're both very smart but have opinions on some issues that will cause them to be perceived as unreliable by the Republican base, and opinions on other issues that make them relatively easy for Democrats to attack.

So if Judge Jones or another archconservative woman is appointed, who would she be paired with? My prediction is . . . Judge John Roberts of the D.C. Circuit, who's profiled by Slate.com. He's been on the bench 2003, long enough to have some federal appellate experience but not long enough to have many controversial opinions. Another possibility for that slot is Judge Garza, but his longer track record will make him easier for Democrats to oppose, particularly if he's paired with Judge Jones or another archconservative. Plus, picking two justices from the same circuit -- and the one from which the President hails to boot -- seems quite unlikely.

And the Winner Is . . .

With the caveat that I don't claim to have any more insight than the next law professor with a blog (and undoubtedly far less than some), here are my predictions:

If the C.J. stays
My pick - Judge Emilio Garza
Alternative - Judge Edith Jones

If the C.J. goes
My picks - Judges Jones and John Roberts
Alternatives - Judges Michael Luttig and Edith Brown Clement

Two qualifications: First, these are predictions, not the people I personally think would make the best justices. Second, this is more speculative than picking horses . . . and I've not even gotten into the question of whom the new Chief will be if C.J. Rehnquist retires.

Oh yeah, how will all this affect voting rights? Well, that's the subject for many a future post.

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Moritz College of Law The Ohio State University