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High Noon at the High Court?


It has been nine years since the Supreme Court welcomed a new member, the longest stretch without a vacancy since 1823. But a convergence of circumstances -- from health concerns to Presidential politics -- are making it increasingly likely that George W. Bush will get to fill at least one, and as many as three, positions this year.

The timing couldn't be better for Bush, who is enjoying a postwar popularity boost. With Republicans controlling the Senate, some aging conservative justices may choose to retire before the 2004 elections, when it's easier for Bush to replace them with like-minded jurists. And Democrats are on the defensive over their protracted blockade of lower-court nominees. So as the court prepares to adjourn by early July, the Administration, the Senate, and activists on the Left and Right are gearing up for a high-stakes, high-decibel showdown. "We are heading for the mother of all Supreme Court confirmations," says Kenneth L. Connor, president of the conservative Family Research Council.

Given the high court's tendency toward 5-4 decisions, the balance of power clearly is at stake. A new court lineup could radically reshape issues from abortion rights and privacy to affirmative action and campaign finance.

Most likely to depart are Chief Justice William H. Rehnquist, a staunch conservative who at 78 is ailing, and Justice Sandra Day O'Connor, 73, a swing vote who frequently disappoints conservatives. Liberal Justice John Paul Stevens turned 83 in April, prompting speculation that he, too, may step down.

Despite assertions that the choice of potential replacements will be made based on merit alone, with no litmus test, as White House Counsel Alberto R. Gonzales vowed in a recent online chat, political factors will weigh heavily. Many GOP strategists are pressing Bush to boost Latino outreach by appointing the court's first Hispanic. That probably elevates the chances of Emilio M. Garza, a San Antonio appeals court judge with solid conservative credentials, and Gonzales, a former Texas Supreme Court Justice.

But Bush advisers also remember his father's choice of Justice David H. Souter, whose moderate record has angered hard-line conservatives for years. The White House knows that the Right will revolt if Bush picks candidates who are soft on abortion or affirmative action. That means headaches for Gonzales, who voted against abortion opponents in a politically charged 2000 parental-notification case. "The movement will not stand for another David Souter," Connor warns.

Social conservatives want Bush to pick the reliably right-leaning J. Harvie Wilkinson, chief of the Fourth Circuit Court of Appeals in Richmond, Va.; J. Michael Luttig, a staunch Fourth Circuit conservative; or California Supreme Court Justice Janice R. Brown, an African American in the Clarence Thomas mold. But any of them -- known to be favorites of the Bush crowd -- would ignite a firestorm along the Potomac. "None would be palatable," says Nan Aron, president of the Alliance for Justice, a liberal group. A worst-case scenario would be a Supreme Court hobbled by vacancies. If Democrats continue to mount serial filibusters, "we are looking into an abyss," says Bruce Fein, a Reagan Administration Justice Dept. official.

It seems like a recipe for gridlock, but Bush might have a way out. If Rehnquist and O'Connor retire, Bush can satisfy the Right by elevating Justice Antonin Scalia, his favorite jurist, to Chief Justice. He then can split the difference by naming Gonzales and an archconservative. As right-wingers and left-wingers snipe, Bush can claim he took the middle road. All he needs is for Rehnquist and O'Connor to ride off into the Arizona sunset together. Fed Chairman Alan Greenspan's popularity goes beyond Wall Street. A May 1-3 poll for Insider Advantage, a bipartisan consulting firm, found that some three-fourths of those polled who have an opinion about the monetary maestro think Bush was correct to choose him for a fifth term. Pro-Greenspan sentiment crosses party lines -- two-thirds of Democrats who follow the Fed want him to remain. But 36% of women and 37% of Southerners were clueless about him. Two years ago, Bush political guru Karl Rove's stellar candidate recruitment helped the GOP retake the Senate. But the '04 campaign isn't so easy. Already, two top Illinois possibilities have rebuffed entreaties to seek the seat of retiring freshman Senator Peter G. Fitzgerald. Rove is eyeing top talent to challenge Democratic incumbents in states Bush won in 2000 but is facing resistance from several would-be candidates, including Health & Human Services Secretary Tommy Thompson of Wisconsin and Housing Secretary Mel Martinez of Florida. Defense Secretary Donald H. Rumsfeld wants to cut scores of reports the Pentagon sends Congress each year. But he's under fire for trying to deep-six those on weapons contracts with cost overruns of 15% or more. Many studies can be cut, says Danielle Brian, head of watchdog Project on Government Oversight. But she calls it "absurd" to claim that raising red flags is a bureaucratic burden.


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