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Bush Judicial Nominations Watch: The Next Supreme Court Vacancy

The highly anticipated retirement of a U.S. Supreme Court justice is one step closer to becoming reality with the recent announcement of Chief Justice William H. Rehnquist’s failing health. Rehnquist, 80, was appointed to the Supreme Court by President Richard Nixon 33 years ago in 1972 and was elevated to Chief Justice by President Ronald Reagan in 1986. Despite Rehnquist’s efforts to work from home since late October and his decision to preside over the Presidential inaugural ceremony on January 20, news reports claim the Chief Justice’s thyroid cancer is serious and that his retirement from the bench is imminent.

Throughout President Bush’s first term there have been concerns over who he might nominate to fill a vacancy. Now that a vacancy of the chief justice seems inevitable, concerns are mounting over not just who the next justice will be, but also who will lead the highest Court in the nation.

Some suggest that President Bush will nominate Justice Antonin Scalia to replace Rehnquist as chief justice and nominate a new justice to replace Scalia. Scalia, 68, was appointed to the Supreme Court by President Ronald Reagan in 1986. While it has been implied that Justice Scalia replacing Justice Rehnquist would be a wash, since both are seen as conservative justices, a closer examination their records highlights a very different reality.

Justice Scalia has shown his disrespect for precedent and an interest in overturning long-standing landmark cases such as Roe v. Wade. In his opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey he states, "Roe was plainly wrong-even on the Court’s methodology of ‘reasoned judgment,’ and even more so (of course) if the proper criteria of text and tradition are applied."1 Scalia has also stated, "The issue is whether [abortion] is a liberty protected by the Constitution of the United States. I am sure it is not."2

Another concern is Justice Scalia’s confrontational temperament on the bench. Most noted, perhaps, are his assaults on fellow judicial conservatives such as his statements that flaws in Chief Justice Rehnquist’s analysis are "self-evident," that Justice O’Connor’s position "cannot be taken seriously [as is] evident to anyone who can read and count," and that Justice Kennedy has "signed on to the homosexual agenda."3

Another possibility is the appointment of Justice Clarence Thomas as the next Chief Justice. Justice Thomas, 56 is the youngest member of the Supreme Court and was appointed by President George Bush, Sr. in 1991. Thomas, like Scalia, does not believe that the Constitution protects a woman’s right to choose and believes that Roe v. Wade should be overturned.4 Beyond the issue of abortion, Justice Thomas’ action on the bench have shown his willingness to further erode the right of privacy by voting to uphold a state law criminalizing sexual activity between consenting adults.5 Legal experts are also concerned about Thomas’ radical disregard for precedent and his willingness to disturb established law without special justification. As one attorney who heads a public interest law firm wrote in the Washington Post this month, "Reading a Thomas opinion can feel like hitting 100 mph on a deserted highway: thrilling (or terrifying, depending on your perspective) but still a bad idea. The excitement of approaching every constitutional question anew comes at the cost of a stab to our constitutional tradition. No president should accept this trade-off."6

The Democrats hope that President George W. Bush will honor the tradition of communicating across party lines before making a nomination. On December 3, 2004, Senate Minority Leader Harry Reid wrote a letter to President Bush. In it, Reid notes that’s autobiography mentions that during the Clinton Administration, the White House consulted then Judiciary Committee Chairman Orrin Hatch before selecting Supreme Court nominees. "Indeed, President Clinton heeded Senator Hatch’s advice to appoint the widely respected Judges Ruth Bader Ginsburg and Stephen Breyer rather than more ideological choice under consideration. The Senate confirmed both nominees by wide margins."7


  1. Casey, 505 U.S. at 983 (citations omitted) (Scalia, J., concurring in the judgment in part and dissenting in part).
  2. Casey, 505 U.S. at 980 (Scalia, J., dissenting).
  3. Nevada Department of Human Resources v. Hibbs, 2003; Planned Parenthood of Pennsylvania v. Casey, 1992; and Lawrence v. Texas, 2003, respectively.
  4. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 944 (1992) (Rehnquist, J., dissenting).
  5. Lawrence v. Texas, No. 02-102, 2003 WL 21467086, at *31 (June 26, 2003); see Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
  6. Douglas T. Kendall, "A Big Question About Clarence Thomas," The Washington Post, 14 October 2004, Page A31, accessed 14 December 2004.
  7. Letter from Senate Minority Leader Harry Reid to President George W. Bush, 3 December 2004.