Bush vs. Gore Has Personal Angle For Some Supreme Court Justices - WSJ 12/12/00
For the nine justices of the U.S. Supreme Court, the presidential struggle before them is not just historic. It's personal.
Chief Justice William Rehnquist, 76 years old, and Justice Sandra Day O'Connor, 70, both lifelong Republicans, have at times privately talked about retiring and would prefer that a Republican appoint their successors.
Two members of the high court, Ruth Bader Ginsburg and Stephen Breyer, owe their appointments to President Bill Clinton, the current boss of Vice President Al Gore. Two other justices, Clarence Thomas and Antonin Scalia, have been praised as model jurists by Texas Gov. George W. Bush and vilified by Mr. Gore.
Few cases that come before the Supreme Court touch the lives of so many of the justices as this one does. Most of the members of the court have active political backgrounds. Most have strong ideological leanings. Those leanings and attachments won't necessarily determine their positions in Bush vs. Gore. But all of the justices live in the partisan hotbed of Washington, and those who aren't planning to retire soon will have to work with the justices the new president appoints.
"They have a stake in who their future colleagues will be, who they might have to associate with or who will carry on their ideals," said Jesse H. Choper, a law professor at the University of California at Berkeley and former law clerk to the late Chief Justice Earl Warren. "This is the first time the court has ever gotten directly involved in a presidential election. That's what makes the difference."
During 90 minutes of oral arguments Monday that featured sharp questioning of lawyers for both sides, the justices appeared to be struggling to find a way out of the election stalemate without damaging their court's reputation. But the proceedings provided only vague clues to how the justices might rule.
The issue that seemed to bother a number of the justices, including David Souter, Anthony Kennedy and Justice Breyer, was this: Do hand recounts in Florida using differing standards in evaluating ballots violate the constitutional guarantee of "equal protection" under the law? And could those problems be solved if there were a clearer standard for counting the punch-card ballots? Some veteran court observers interpreted the questioning as an indication that Justices Souter, Kennedy and Breyer might be willing to consider further hand recounts in Florida, as favored by Mr. Gore, if they could be conducted according to a uniform standard.
On Saturday, the conservative majority prevailed in a 5-4 ruling that temporarily stopped the hand recount of ballots and signalled that Mr. Bush would have a substantial chance of succeeding on the merits in this case. A high-court victory would almost certainly end the 34-day post-election legal battle and make Mr. Bush president-elect.
For the public, the case poses questions about the court's ability to rise above the partisan fray. A new Wall Street Journal/NBC News poll indicates a deep public split over the justices' role in the case, with Republicans overwhelmingly supporting the court's intervention and Democrats overwhelmingly opposing it. Overall, a majority of voters approves of the court's decision to stop hand recounts in Florida until it decides the case and would be satisfied if the recounts aren't allowed to continue. But 53% percent felt the order to halt recounts was based mostly on politics. Just 34% thought it was based mostly on the law.
As the justices grappled Monday with technical aspects of Florida and federal law, it was evident that at least some of them were wary of having been put in the position of effectively choosing the next president. But in addition to the weighty national stakes, there were personal interests in play, as well.
Justice O'Connor, a cancer survivor, has privately let it be known that, after 20 years on the high court, she wants to retire to her home state of Arizona, where she rose to become the first female majority leader of the state senate.
At an Election Night party at the Washington, D.C., home of Mary Ann Stoessel, widow of former Ambassador Walter Stoessel, the justice's husband, John O'Connor, mentioned to others her desire to step down, according to three witnesses. But Mr. O'Connor said his wife would be reluctant to retire if a Democrat were in the White House and would choose her replacement. Justice O'Connor declined to comment.
Although she is the key swing vote on the delicately balanced court and sometimes sides with the moderate wing, her conservatism runs deep. Her father, a rancher who taught her to shoot a rifle when she was six, detested the social-welfare philosophy of Franklin Delano Roosevelt's New Deal. She was a precinct captain during the presidential campaign of Barry Goldwater and was the first woman on the Supreme Court when she was appointed by Ronald Reagan. When she was being vetted by the Reagan administration for the job, one of the people who interviewed and passed judgment on her was James Baker, now Mr. Bush's chief operative in the Florida fight.
Justice O'Connor was diagnosed with breast cancer in 1988 but seems to have recovered. Six years after the disease was discovered, she publicly spoke about how much her job aided her struggle. "As tired and stressed out as I was, I had a job that was hard and important and was always there for me to do," she said. But she also mused about her own mortality: "Having this disease made me more aware than ever before of the transitory nature of life here on earth, of my own life."
She isn't the only one with a personal stake in Monday's arguments. In the past, there have been indications that Chief Justice Rehnquist wanted to retire, also to Arizona, where he practiced law before coming to Washington in 1969 to work in the Nixon Justice Department. In January, he will have been on the bench for 28 years. He is a widower and has an ailing back. During most oral arguments, he gets up at least once and disappears behind the maroon curtains behind the justices' chairs for 20 seconds or so, to stretch.
Mr. Rehnquist's current desires are less clear. "I don't think anyone knows whether the chief is contemplating retirement right now," said Jeff Bleich, a former law clerk. "He was contemplating it about 10 years ago when his wife was ill. But after she passed away, he has really focused on his work, and he hasn't been talking about it since then."
The chief justice's conservative beliefs date to his college days at Stanford, and even his childhood, when his parents' heroes included Herbert Hoover and Alf Landon. A Bush presidency would allow Chief Justice Rehnquist to leave with hopes that the conservative court he helped forge would survive him.
There have been rumors from time to time that Justice John Paul Stevens, 80, also might be interested in retiring. Although he was appointed in 1975 by Republican Gerald Ford, Justice Stevens is now one of the court's most-liberal members. He wrote a stinging dissent from the court's temporary halt of the Florida ballot recount. But Justice Stevens hasn't given any public indication that he is now thinking of stepping down.
Justices Scalia and Thomas saw their judicial performance become an issue in the campaign they may now decide. Their names entered the fray in November 1999, when a television interviewer asked Mr. Bush, "Which Supreme Court justice do you really respect?" He pointed to Mr. Scalia, saying, "He's an intellect. ... He's witty, he's interesting, he's firm." Gov. Bush was also asked whether his father was correct when he said, in choosing Justice Thomas, that the nominee was the most qualified candidate -- a question raised by liberals at the time. "I do," Mr. Bush responded. "And I think he's proven my dad correct."
Democrats pounced on the statements, with Mr. Gore once denouncing Mr. Scalia as "the most far-right member of the court." During one of the presidential debates, the vice president added, "The next president is going to appoint three, maybe even four justices of the Supreme Court. And Gov. Bush has declared to the antichoice groups that he will appoint justices in the mold of Scalia and Clarence Thomas who are known for being the most vigorous opponents of a woman's right to choose."
Left-leaning interest groups picked up the cudgel in campaign ads opposing Mr. Bush, depicting a Supreme Court chamber of horrors if he won. People for the American Way spent $500,000 on one late-campaign television spot that parodied a credit card ad, calling Justices Thomas and Scalia "George W. Bush's favorite Supreme Court justices" and portraying them as ardent opponents of gun control and other "priceless" personal freedoms.
Mr. Thomas's wife, Virginia Thomas, who attended Monday's oral arguments, adds another dynamic to his role in the case. In 1996, while working for House GOP leader Dick Armey of Texas, Ms. Thomas spearheaded a leadership effort to gather embarrassing information about the Clinton-Gore administration. In a memo from another leadership aide, committees were instructed to comb their files for examples of "corruption ... dishonesty or ethical lapses in the Clinton administration" and to send the results to Ms. Thomas.
More recently, as a senior fellow at the conservative Heritage Foundation in Washington, Ms. Thomas has been gathering resumes from congressional aides who want to work in the next administration. She recently solicited nominees in an e-mail sent to 194 Capitol Hill aides, including some Democrats. In an interview, Ms. Thomas denied any interest in working for Mr. Bush herself and said she wasn't soliciting resumes on behalf of the Bush campaign, although she acknowledged that Mr. Bush would be more likely than Mr. Gore to get help from Heritage.
Her husband "keeps his professional life very separate from me. There is a Chinese wall," Ms. Thomas said.
Justice Scalia has a family member whose law firm has a particular interest in the outcome of Bush vs. Gore. His son, Eugene Scalia, a management-side labor lawyer, is a partner of the attorney who has represented Mr. Bush before the high court.
By JESS BRAVIN, RICHARD B. SCHMITT and ROBERT S. GREENBERGER - |
