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On Aug. 3, 1994, President Clinton was in the second year of his first term, and Stephen Breyer took a seat on the Supreme Court. More than 10 years have passed without a vacancy, the longest period since the 12-year gap from June 19, 1811, to March 18, 1823, back in the days when James Madison and James Monroe were president and the Court had seven members. The next presidential term will almost certainly end the drought. Chief Justice Rehnquist is 80 years old. John Paul Stevens is 84. Sandra Day O’Connor and Ruth Bader Ginsburg have both battled cancer. If George W. Bush is re-elected, he will have the opportunity to reshape the Court, perhaps decisively. Appointment opportunities tend to come in clumps: Richard Nixon had four in four years, and together, Ronald Reagan and the first President Bush had five in five years. President Bush would face such opportunities with advantages a Democrat would lack. Republicans have controlled the executive branch for 16 of the past 24 years. They have had more chances to fill the circuit courts and the senior Justice Department positions — the traditional farm teams for the Supreme Court. As a result, the Republicans have more “bench strength” than the Democrats. A reelected President Bush need only look across the Potomac to the 4th Circuit for two likely prospects. Judges J. Harvie Wilkinson III, 60, and J. Michael Luttig, 50, will almost certainly make the short list for the next opening. Both clerked for Supreme Court justices: Wilkinson for Lewis Powell, Jr., and Luttig for Warren Burger, following a clerkship for then circuit judge Antonin Scalia. Both were appointed to the bench at a young age, Wilkinson at 39 and Luttig at 37. This gives them the double advantage of long judicial experience, and, by Supreme Court standards, relative youth. If appointed soon, either could hold a seat on the high court for 20 or even 30 years. Both judges are highly respected conservatives whose decisions have made a mark on the Supreme Court. Wilkinson wrote the decision in Richmond v. Croson, the landmark case which curtailed the power of local governments to adopt racial preference programs. Luttig authored an opinion striking down a key provision of the Violence Against Women Act on the grounds that gender-motivated crimes of violence are the exclusive province of state law. The Supreme Court upheld both decisions, largely adopting the circuit judges’ reasoning. President Bush could also draw upon ranks of high-ranking Justice Department veterans. A former U.S. attorney for Atlanta, Larry Thompson, 58, served as deputy attorney general under John Ashcroft, where he led the National Security Coordination Council. President Bush named him head of the Corporate Fraud Task Force, where he supervised the government’s Enron investigation. Thompson’s broad experience in national security and criminal law would make him an attractive candidate. Another Justice Department veteran is former Solicitor General Theodore Olson. Under President Reagan, Olson served as assistant attorney general for the Office of Legal Counsel, a position sometimes called the Justice Department’s lawyer. Olson, 64, has figured in Supreme Court jurisprudence from every angle but on it. He was a named party in Morrison v. Olson, a contentious litigation arising from his advice to the EPA. The case resulted in a Supreme Court decision upholding the constitutionality of the independent counsel law. As a private attorney, he successfully argued Bush v. Gore before the high court. As solicitor general, he argued dozens of cases for the government, ranging from the McCain-Feingold campaign finance law to the Michigan affirmative action cases. Despite a tough confirmation fight, Olson won broad admiration from both sides of the aisle for his professionalism in running the office. In the partisan, often ruthless, circles of official Washington, it’s fair to say that Olson ended his solicitor general tenure a more popular figure than when he started it. Rather than looking outside, President Bush might be tempted to look no farther than down the hall to White House Counsel Alberto Gonzales. The president and Gonzales, 49, go back to pre-Washington days, when Governor Bush appointed him as general counsel, then secretary of state, and then Texas Supreme Court justice. Gonzales grew up one of eight children of migrant workers, living in a house without hot water or a telephone. The president, reared in far different circumstances, has genuine affection for Gonzales, and has spoken with undisguised emotion about how the Gonzales parents sacrificed for their eight children, and how Alberto “realized their dream.” Any one of these prospects would bring qualifying credentials. But each would also face confirmation difficulties. For the first time in history, the Democrats have used the power of the filibuster to block some Bush nominees, effectively creating a 60-vote hurdle for confirmation. They will likely use the filibuster weapon against any Supreme Court nominees seen as threats to the party’s ideological bases. Wilkinson will almost certainly be targeted by the civil rights establishment for his principled opposition to racial preferences. He may also be scrutinized for his treatment of capital punishment cases. According to a recent South Carolina Law Review article, he granted one death-row review hearing in 19 years. Capital punishment opponents would be even more upset by a Luttig nomination. Ten years ago, his father was brutally murdered by a 17-year-old car thief. Luttig moved his chambers to Texas so he could attend his father’s killer’s trial. Because of the murderer’s age, his case attracted worldwide attention before his eventual execution. Judge Luttig, fairly or not, is seen by capital punishment opponents as implacable on the issue. Larry Thompson is a longtime friend of Clarence Thomas, and was instrumental in his confirmation fight. Civil rights lobbyists may view with alarm the prospect of a second black conservative on the Court. But Thompson may be less an absolutist on racial preferences than Thomas. In a recent column for the Atlanta Journal-Constitution, Thompson lauded the Justice Department efforts to diversify its workforce, including on racial and ethnic grounds. But he stressed that the department’s efforts involved outreach initiatives, rather than “hiring or promotion preferences, which are unnecessary and would be demeaning to the many highly qualified minority attorneys.” Olson’s long commitment to conservative causes has made him something of a bogeyman to the Paranoid Left. During the Clinton years, he was frequently cited as a centerpiece of the “vast right-wing conspiracy.” Like Luttig, he also faced family tragedy. His wife, commentator and author Barbara Olson, was killed on 9/11. In the aftermath of her death, his service as solicitor general enhanced his reputation as a consummate professional, while also tempering the animosity of his opponents. In the cold calculus of confirmation politics, it’s quite possible that while Luttig’s father’s death diminished his appointment prospects, Olson’s wife’s death enhanced his. Gonzales might also face confirmation difficulties for authoring legal memoranda exploring the applicability of the Geneva Conventions to captured terrorists. But before he faces confirmation problems, he must first be nominated, and that’s where opposition from the Right may lessen his chances. Many conservatives question his stand on racial preferences. They suspect that the mixed signals emanating from the White House on the Michigan cases arose from a conflict between Gonzales and Olson, a conflict in which Gonzales eventually prevailed. These five very accomplished, very different and very dedicated men appear to have the inside track for the first Supreme Court vacancy in a second Bush term. One, two, or even three of them could be sitting on the Court before Bush leaves office. But given the vagaries of Supreme Court appointments, it is just as likely that all five could be busily pursuing opportunities in the private sector four years from now. Recorder Contributing Writer Lawrence J. Siskind, of San Francisco’s Harvey Siskind Jacobs, specializes in intellectual property law.

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