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In the first moments of his second term on Jan. 20, President George W. Bush may come face to face — literally — with a reminder of the judicial vacancies he can fill in the next four years. On Inauguration Day, if the ailing Chief Justice William Rehnquist is still unable to perform some of his duties, then Bush may be sworn in by someone else, possibly the senior associate justice, John Paul Stevens — the first time in 41 years that the nation’s chief justice does not administer the oath of office to a new president. And that could be the starting point of a presidential term marked by judicial confirmation battles that rival or exceed in intensity those of Bush’s first term. But there were new signs last week that pointed toward a less contentious relationship between Bush and the Senate on judgeships. Bush struck a conciliatory tone in post-election remarks, and Sen. Arlen Specter, R-Pa., the likely incoming Judiciary Committee chairman, appeared at first to caution the president against sending him conservative nominees, though later in the week he backtracked from that admonition. Conservatives predicted Bush’s approach to nominations would not change. Predicting whether the next four years of judicial confirmations will be rocky or smooth has been complicated by deep uncertainty about Rehnquist’s health and future. The dynamics, or at least the timetable, of what once was a more abstract election issue concerning the future of the judiciary have been scrambled. Instead of playing out first at the appeals and district court levels — where Bush now faces an unusually low number of vacancies, 28 — it seems increasingly likely that the issue will unfold in the much more high-intensity crucible of a Supreme Court nomination. And that test may come well before the end of the Court’s term next June, when justices often time their retirements. “Replacement of the chief justice will be the first test of the president’s commitment to compassionate conservatism,” says Wade Henderson, executive director of the Leadership Conference on Civil Rights and a liberal veteran of judicial nomination battles. “The chief’s situation has put the judicial issue front and center,” adds Jay Sekulow, chief counsel of the conservative American Center for Law and Justice. Sekulow thinks that news reports of Rehnquist’s illness since it was first announced Oct. 22 “definitely helped motivate the president’s base at the end.” Rehnquist, battling a diagnosis of thyroid cancer with a combination of chemotherapy and radiation, was absent from the bench last week and is not expected to return for this week’s oral arguments. Court-watchers were speculating last week that Rehnquist may depart even before next year, raising the possibility of a recess appointment to replace him. But Rehnquist appears determined to continue voting and working on pending cases as long as he is able, and no new nomination is expected before Bush’s second term begins. If Rehnquist is still ill or has not been replaced by Jan. 20, his absence would break a long-standing tradition of chief justices swearing in presidents. The last time someone other than a chief justice performed the duty was after the assassination of John F. Kennedy in 1963, when Lyndon Johnson was hastily sworn in aboard Air Force One by Sarah Hughes, a U.S. district judge from the Northern District of Texas. When or if a Rehnquist replacement is named, liberal groups are gearing up for battle, in case Bush’s olive branch, offered to Democrats in post-election remarks, does not extend to nominations. “Americans are expecting a bipartisan effort and results,” Bush said Wednesday. “We will hope for the best, but prepare for the worst,” says Elliot Mincberg, legal director of the liberal People for the American Way. “The next move is clearly up to the president.” Liberal groups are skeptical of Bush’s comments, given the sharply conservative bent of some of his first-term judicial nominees. “The prospect of a vacancy certainly gives the president the opportunity to play a more unifying role,” says Nan Aron of the Alliance for Justice, a leading liberal strategist of past battles against Republican judicial nominations. “But if he doesn’t play that role, he’ll set off a firestorm.” Liberal groups were heartened — but suspicious — when Sen. Specter offered cautionary words that seemed to forecast a more moderate approach to nominations in Bush’s second term. “When you talk about judges who would change the right of women to choose, overturn Roe v. Wade, I think that is unlikely,” said Specter, according to an Associated Press report. Specter, who won re-election to a fifth term on Nov. 2, voted against Supreme Court nominee Robert Bork in 1987. Specter added that Bush was “well aware” of the rancor his nominations triggered in the last term. But some veterans of confirmation battles heard Specter’s remarks skeptically. Specter has said much the same thing for years, says Aron, but he consistently voted for Bush’s first-term judicial nominees, even those viewed as strongly against abortion rights. “We’ll have to see if his actions match his words,” Aron says. Late Thursday, it appeared Specter was tempering his widely circulated remarks. In a press release Specter said, “Contrary to press accounts, I did not warn the President about anything and was very respectful of his Constitutional authority on the appointment of federal judges.” Specter said he would not apply any litmus tests to nominees. Conservatives were upset with Specter’s statement — even after it was corrected. “This makes Specter unfit to be chairman of the Judiciary Committee,” says Todd Gaziano, director of the Center for Legal and Judicial Studies at the Heritage Foundation. Gaziano adds that he heard “nothing short of outrage and disbelief” from fellow conservatives about Specter’s statements. No matter what Specter’s posture turns out to be, the Republicans’ new roster of 55 senators, as opposed to 51 in the current session, will also change the Senate landscape. The threshold of 60 senators needed to stop a filibuster thwarted several Bush nominees last term, and likely still will next year. But the higher number of Republicans, coupled with what many view as Bush’s stronger mandate, will make filibusters harder to launch or sustain, says Gaziano. “Senate Democrats have to rethink their philosophy about filibusters,” adds Sekulow, asserting that Senate Democratic Leader Tom Daschle was defeated for re-election in South Dakota in part because “playing too cute with the judges backfired.” In fact, Sekulow thinks filibuster targets such as Miguel Estrada could be renominated and win in Bush’s second term. Estrada, put forward in 2001 for a seat on the U.S. Court of Appeals for the D.C. Circuit, withdrew his nomination. Sekulow, for one, thinks that neither Bush’s post-election olive branch nor Specter’s comments will change Bush’s nomination philosophy. “That’s the post-election honeymoon,” Sekulow says dismissively. “I think the president is going to nominate judges very similar in philosophy to those of the first term, and he should. He ran on the judicial nomination issue and he got a mandate to continue.” Gaziano agrees. “President Bush will continue to nominate such outstanding judges” with the approval of a strong majority of voters. Bush’s approach should not change, Gaziano says, “just because some babies throw tantrums.” Editor’s note: For more on President Bush’s judicial nominees and their decisions, see the related Legal Times article, “Bush Judicial Picks: Not Always Playing to Type.”

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