Washington With over 100 vacancies on the federal bench, the judges President Bush appoints will have an instant impact on our court system. Ever since candidate Bush singled out conservative Justices Antonin Scalia and Clarence Thomas as his role models, Democrats have feared that Bush will use the courts to deliver a social agenda that he can't get through the Congress. Republicans had similar concerns about Bill Clinton's stacking the courts when he was president, and they stalled many of his nominees. That's why there are so many vacancies for Bush to fill, and why both sides are bracing for the coming battle over judges: The Black Cloak War.
For Republicans, there is a sense of urgency. With Republican Strom Thurmond at age 98 defying the actuarial tables every day he shows up for work, the White House wants to take advantage of the GOP's technical majority (Vice President Richard Cheney breaks ties) in the evenly divided Senate. Bush's first batch of nominees is expected to look like his Cabinet diverse in gender and ethnicity, generally uniform in orthodox conservative thinking. High on Bush's list is Utah law professor Paul Cassell, who argues strenuously for overturning the Miranda rights rule routinely read to those who are arrested, and California Rep. Christopher Cox, a popular and smart true believer in the Scalia mold who wins re-election easily in conservative Orange County. Among the olive branches to progressives, Bush will propose formalizing the nomination of Roger Gregory to the 4th Circuit Court of Appeals. A Clinton interim appointee, Gregory is the only African-American on the 4th Circuit in Richmond, Va., which rules on many cases involving blacks.
The lower court's jockeying foreshadows a potential blockbuster fight over Bush's first Supreme Court nominee. Women's groups have been urging members to write Justice Sandra Day O'Connor to beseech her not to step down. She is a crucial swing vote, and her departure would tip the Court in ways that would almost certainly overturn abortion rights and what's left of affirmative action.
The Senate that confirmed John Ashcroft as attorney general can go either way in the coming battles. The Bush White House has signaled that it's ready for the fight. Having banished the American Bar Assn. from vetting nominees, the GOP also plans to spurn the ritual of giving home-state senators a veto over nominees. Democrats are returning fire, stalling the confirmation of Ted Olson as U.S. Solicitor General, a top post at the Justice Department. Olson was the lawyer who argued before the Supreme Court the case that made Bush president.
A majority of voters do not side with the Bush administration on aspects of its conservative social agenda, but Republicans understand that the courts constitute the most powerful branch of government. Bush does not want the more radical aspects of his social agenda aired on Capitol Hill. The recent House passage of a bill that would make a person killing a fetus subject to the federal death penalty is expected to languish in the Senate, where it has no chance of passing. New England moderate Republicans stand with most Senate Democrats in opposition to the bill, and it is unlikely to even come to a vote.
Behind the black cloak of the judiciary is where enduring change is made.
Political Correspondent Eleanor Clift contributed to this column.