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There’s the multiple-Hispanic-conservative gambit. And the double-vacancy strategy. And then, there’s the doomsday scenario for the liberals: elevating Clarence Thomas to the position of chief justice. The prospect of one or more Supreme Court vacancies in the next four years has spawned all manner of speculation and strategizing about who would be nominated by which candidate. Some of the talk is aimed at energizing or scaring one side or the other in the election debate, while some seeks to provoke debate about the confirmation process. Georgetown University Law Center professor Mark Tushnet got the ball rolling last month with a controversial article in Legal Affairs magazine suggesting that the past four years of rancor between the Senate and the White House over lower court nominations makes it unlikely that either President George W. Bush or Sen. John Kerry (D-Mass.) — if elected Nov. 2 — would win confirmation for any but the blandest of high court nominees. “You should support whomever you want for president and not count on your vote helping to determine the fate of the Supreme Court,” Tushnet advised readers. But Tushnet’s view was disputed by liberals and conservatives alike, who predict that, if re-elected, Bush would not hesitate to name one conservative nominee after another. “The confirmation battles we’ve seen in the past are going to look mild compared to those to come, no matter who is nominated,” says Sean Rushton, executive director of the Committee for Justice, which supports Bush judicial nominees. “So why not nominate someone your supporters will really like?” From the other side of the fence, Elliot Mincberg of People for the American Way agrees. “I don’t think Mark [Tushnet] is a terrific student of the politics of Capitol Hill.” Based on Bush’s lower court nominees over the last four years, Mincberg and others agree that a second-term Bush might well go for broke and appoint the sharpest conservatives he can recruit. “Bush nominated Janice Rogers Brown to the D.C. Circuit,” Mincberg exclaims. “If ever there was a thumb in the eye to Democrats, that was it.” Mincberg envisions Bush, for example, sending up one Hispanic conservative after another until Senate Democrats lose the energy or discipline to filibuster. Or, if Democrats persist in knocking down candidates, Bush could keep as his last resort Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit — a respected and popular conservative who would be hard to defeat. “Bush is not going to hold back if he has a second term,” agrees Kate Michelman, head of the Democratic National Committee’s Campaign to Save the Court. “Even losing is winning for them.” Mincberg and Michelman think it is not beyond the realm of possibility that Bush would nominate Justice Clarence Thomas to replace a retiring William Rehnquist — an option that would guarantee a confirmation battle even more bruising thanthe one Thomas barely survived in 1991. Judging Thomas, a new biography of Thomas, reports that “senior aides” of Bush have already consulted with Thomas about his willingness to be nominated to replace Rehnquist. “There were long discussions to see if he would be interested if it was offered,” says the book’s author, Ken Foskett. Thomas said he probably would not, according to Foskett, but Foskett adds that Thomas has a long history of taking jobs he did not want initially — from the chairmanship of the Equal Employment Opportunity Commission to a seat on the D.C. Circuit. A former Bush official says the report of talks with Thomas are “poppycock.” While all kinds of possibilities were discussed internally, this former official says, it would have been inappropriate to “reach out” to Thomas while Rehnquist was still in office. In the end, says the former official, who requested anonymity, the administration concluded that Thomas “was not a person who would fit the bill” as chief justice. What if Kerry wins? The rumor mill there is less titillating, partly because Kerry, like former President Bill Clinton, is not viewed as likely to name sharp ideologues or invest much capital in nominations. Those mentioned most often as possible Kerry nominees include D.C. Circuit Judge David Tatel, who would be the first blind person on the Court, and 2nd Circuit Judge Sonia Sotomayor, who would be the Court’s first Hispanic justice. Both sides are hoping the Court will come up in the Bush-Kerry debates and are gearing up for campaign ads and mailings, though details and dollar figures are uncertain. Michelman has launched mass mailings she hopes will trigger more than 1,000 dinner parties around the Court issue on Oct. 2, two days before its fall term begins. Diners would hear messages from Michelman and Sen. Hillary Clinton (D-N.Y.). People for the American Way’s political arm is dusting off ads it used in 2000 to warn about the prospect of Bush Supreme Court nominees. Rushton’s group also plans ad buys to warn about Kerry nominees and has launched a lighthearted Web site, www.kerrysscary.com, on the subject. Rushton also thinks it will be an issue in key Senate races. “It’s a good issue for Republicans because it is a populist one,” he says, explaining that it enables Republicans to say that elected officials — not justices — should set policy. With acrimony already high, former acting Solicitor General Walter Dellinger III says, “I do fear for the process” when the Senate is asked to confirm a new justice after more than 10 years. “A lot of pressure has built up.” Which is why Dellinger, a D.C. partner with O’Melveny & Myers, is advancing a scenario that sounds nightmarish at first, but he thinks offers a chance for compromise. If two justices retire at the same time, Dellinger says, the president and the Senate would have an unprecedented opportunity for “meaningful accommodation,” agreeing on candidates that would please both Democrats and Republicans. If one retiree were the chief justice and a current justice like Sandra Day O’Connor were elevated, Dellinger sees the prospect of a three-way deal that could please moderates, conservatives, and liberals alike. “I know it’s not likely to happen,” says Dellinger. “But it might make for less of a train wreck than we are looking at now.”

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