Could Clarence Thomas be the Next Chief Justice Under Bush II?

This article originally appeared in The North Star Network.

It was a bold move even by Capitol Hill standards; the Republican led House of Representatives voted on October 5 to break up the 9th Circuit U.S. Court of Appeals. In a 205-194 vote, the GOP orchestrated a vote to split the more progressive federal circuit as part of a larger measure to create 58 new federal judgeships. The bill calls for separating California and Hawaii into a separate circuit. The seven other states that make up the 9th Circuit would be split into two new jurisdictions: one to hear appeals from Arizona, Idaho, Montana and Nevada; and a second for cases coming out of Alaska, Oregon, and Washington.

The 9th Circuit has been a consistent target of conservatives, angered over the court’s more liberal orientation. Most recently GOP activists were angered when the court declared the Pledge of Allegiance unconstitutional when recited in public schools due to the phrase “one nation under God.” Many Republicans claimed the House bill was simply an effort to ease a growing court caseload due to the circuit’s growing population. It was clear, however, that ideological differences was what was driving supporters of the bill.

Though the bill was opposed by California Gov. Arnold Schwarzenegger and a majority of the sitting judges on the 9th Circuit, the simple fact that it was put up for a vote, and passed, demonstrated the degree to which control of the federal judiciary is a critical issue in the presidential election. The fact that such a blatantly political maneuver was orchestrated suggests that filling vacancies on the federal bench will be an extremely contentious process in the 109th Congress under the next president. There are currently 28 vacancies and 21 nominations pending for seats on the federal bench.

Supreme Court and the Shadow of Florida

With the presidential election just weeks away, attention is once again turning toward the United States Supreme Court as its role in determining the outcome of the 2000 election is still in dispute. Judging by the number of states that are already confronting voting issues, the introduction of electronic voting in some states, and what appears to be another meltdown in Florida, the nine justices of the high Court may once again be at the center of determining the occupant of the next White House.

For Black voters in particular it is a potential outcome that would only further undermine confidence in the democratic process. While there is legitimate reason to hold the Gore campaign in contempt for its feeble defense of Black voting rights after the 2000 vote tally, the manner in which the Court intervened confirmed the suspicions of many Blacks that the federal judiciary had become hostile territory. That opinion is still held by many Blacks despite the Supreme Court’s split ruling on affirmative action in the University of Michigan cases.

And while Florida casts a large shadow over the Court, the composition of the nation’s highest court is at stake in the election. Presently, as constructed, the Supreme Court is precariously balanced by the unpredictable posture of Associate Justice Sandra Day O’Connor. All but two of the sitting justices were appointed by Republican presidents; with Justice Ginsburg and Justice Breyer appointed by President Clinton. Three members of the Court, Chief Justice Rehnquist, Justice O’Connor and Justice John Paul Stevens could conceivably retire during the next presidential term. If O’Connor steps down the balance of the Court will be at stake. Should Chief Justice Rehnquist call it quits the next president will have the opportunity to appoint the next head of the Court. That could mean, if President Bush is elected, the elevation of either Justice Scalia or Justice Thomas, to the position of Chief Justice. The president has repeatedly pointed out the two judges, the Court’s two most conservative jurists, as role models for the individuals he would prefer on the bench. Both men have been vociferous opponents of affirmative action.

The appointment of Thomas to head the court would be a masterstroke for President Bush in a second term. By neutralizing the issue of race in Thomas’ initial appointment to the Court, Republicans set up the possibility for the Black conservative to eventually serve as Chief Justice. As the youngest member on the bench, Thomas presents conservative Republicans with the opportunity to put someone at the helm of the court who could conceivably be there for close to two decades. It would also allow Mr. Bush to gain credit for appointing a Black to the ultimate judicial post while denying that race played a role in the selection. It would also put many Blacks in the awkward, albeit not altogether difficult, position of opposing the nomination of the first African American Chief Justice.

Issues at Stake: Affirmative Action, Civil Liberties, and Voting Rights

The Supreme Court term under a second Bush administration could pose some serious challenges to the maintenance of policies affording Blacks opportunity. The near-death experience of the University of Michigan affirmative action cases, suggests a reconstituted bench during a Bush second term might be more likely to put a nail in the coffin to programs designed to level the playing field. This scenario could particularly prove true if Justice O’Connor were to leave the bench and be replaced by a conservative jurist.

Equally of concern are cases involving abuses of civil liberties in the new anti-terrorism environment. President Bush’s calls for the extension of the USA Patriot Act is raising concerns among civil rights advocates who fear certain provisions of the controversial law encroach upon the rights of Americans. The courts have given the administration some leeway in the implementation of the Patriot Act but concerns remain that its use far exceeds its stated purpose of combating terrorism, and ventures into creating a police state in the nation. Should Mr. Bush win, and he has the opportunity to further shape the federal judiciary, it could become more difficult to challenge a Patriot Act II, if enacted by Congress.

Continued issues revolving around voting rights makes the composition of the judiciary under the next president critical. The Florida debacle in 2000, and in other states such as Illinois, revealed the vulnerability of the nation’s election infrastructure. The disputed vote count exposed the many ways in which the ballot can be invalidated, and the degree to which Black and Latino voters are disfranchised. The onset of electronic voting in many states could send many elections to the courts for resolution. A more conservative judiciary might be less enthusiastic in the enforcement of the Voting Rights Act, in areas of voter protection and legislative redistricting.

The Appointments Process: Expect an All-Out Brawl

The election of the next president is certainly critical to the issue of the composition of the federal judiciary but equally important is the question of the Senate majority in the 109th Congress. As the house of Congress that vets judicial appointments, the control of the Senate will drive the type of judges appointed to sit on the federal bench. Either political party is expected to have a paper-thin majority on the Court; should Republicans maintain control and President Bush is reelected, the appointment of so-called “strict constructionists” to the bench should be expected. These are judges who hold a very narrow and conservative view of the Constitution, and would most likely rule against cases that expand social opportunity – including voting rights, affirmative action, and gay rights – while restricting rights in many instances.

The control of Congress will drive the composition of the Senate Judiciary Committee, the panel that approves presidential judicial appointments. In recent years the path of court nominees has more resembled a tawdry wrestling match, akin to the type on television featuring grown men in outlandish outfits, than a legislative process. This has particularly been the case when Republicans have controlled the White House and the sitting president put forth nominees to the right of the political spectrum. President Reagan’s unsuccessful attempt to elevate Judge Robert Bork to the Supreme Court set off a nasty and divisive partisan battle on Capitol Hill that set the stage for the fight over Clarence Thomas under the current president’s father.

If Democrats can capture the Senate they will have an opportunity to use the Judiciary Committee to prevent the most conservative judges from being approved. Should the GOP stay in control, conservative judicial nominations will probably make their way to the Senate floor and Democrats will be forced to use legislative maneuvers to prevent their approval. However, Democrats have their own internal struggle keeping “Blue Dog” conservative Democratic lawmakers, mainly from southern states, from jumping ship and voting with the Republican Party. That was the case with the vote on the appointment of Justice Clarence Thomas to the Court as Democratic senators cast favorable votes for President George H.W. Bush’s appointee.