George Allen, George Bush, and the Supreme Court

There’s much more to be decided in November than who will be president for the next four years. Also to be decided is the philosophical direction of the U.S. Supreme Court for the next couple of generations.

Critical to the high court’s direction, interestingly, is Virginia’s junior senator, George Allen. As head of the National Republican Senatorial Committee, Allen is quarterbacking Senate campaigns across the country. There are four or five potential Republican gains that could make Senate confirmation of right-leaning judicial nominees – especially for Supreme Court vacancies – less difficult sledding for a reelected President Bush.

It’s likely, you see, that Bush in his second term will appoint at least two new Supreme Court justices, possibly three, and maybe even four. No matter the number, any Bush appointment will set the court in a more conservative direction for years to come.

Chief Justice William H. Rehnquist will be 80 next month. He was first appointed to the Supreme Court by President Nixon and was elevated to chief justice by President Reagan. Justice John Paul Stevens, appointed by President Ford, is 84. It’s almost certain that both Rehnquist and Stevens will retire within the next four years, giving a re-elected Bush his probable first two high court appointments.

Sandara Day O’Connor is 74 and for a few years has been rumored to have an eye toward retirement. For the moment, though, this Reagan appointee is most certainly enjoying setting legal precedence as the most frequent conservative swing vote in numerous 5-4 decisions. It’s certainly possible that O’Connor will retire at some point in Bush’s second term, giving him a third appointment.

And then there’s Ruth Bader Ginsberg. She’s 71. A Clinton appointee, she’s had health problems in recent years, though she’s seemingly in good health now. It’s at least possible that she could retire in the next four years, giving Bush a fourth appointment.

The remaining justices, simply by virtue of their ages, could remain on the court for 10-20 more years. Reagan appointees Antonin Scalia and Anthony M. Kennedy are 68. David H. Souter, named to the court by President George H.W. Bush, will turn 65 this week. Clarence Thomas, also appointed by the first President Bush, is 56. And Stephen G. Breyer, named to the high court by Clinton, is 66.

The present court is generally considered a 5-4, right-of-center one. The conservative majority is most always made up of the four stalwarts – Rehnquist, Scalia, Kennedy, and Thomas – with O’Connor tipping the scale. Stevens and Souter, despite being appointed by Republicans Ford and Bush I, respectively, are usually left-leaning in their decisions, joining Ginsburg and Breyer.

Bush, in his second term, could replace a retired Chief Justice Rehnquist with, say, Scalia, and appoint in his place a much younger conservative, one who could serve a quarter-century or more. In replacing the liberal Stevens, Bush would immediately push the court toward a 6-3 conservative majority. In the event Ginsburg is replaced, it’d go to 7-2.

George Allen is poised to make history beyond simply increasing the GOP’s majority in the Senate. There are four or five potential Republican pick-ups that could prove critical in securing a more conservative federal judiciary generally and Supreme Court particularly.

Probable GOP wins in retiring Democratic seats are in South Carolina, Florida, and Georgia. There’s a likely Republican pick-up in North Carolina, and a possible one in Louisiana. Republicans must hang on to toss-up races in Alaska and Colorado, while conceding a loss in Illinois. There are many other Senate races across the country where the incumbent party is most certain to keep the seat.

The current Senate Republican “majority” is 50 in the 100-member body, with Vice President Dick Cheney providing the tie-breaking 51st vote. If Allen is successful in boosting the GOP’s net numbers to 53 or 54, then Bush is in a better position when it comes to convincing a half-dozen conservative Senate Democrats to join with Republicans for the 60 cloture votes needed to break any filibuster and ensure judicial nominees get an up-or-down confirmation vote on the Senate floor.

It’ll be difficult for Allen to get more than 54 Republicans elected to the Senate in November. The more he moves the GOP count from 50 toward 60, though, the more conservative judicial nominees Bush will be able to put forward. The closer to 50 the GOP numbers remain, the more moderate Bush’s nominees must be to win Senate confirmation.

Likely Supreme Court candidates to be on any Bush short list include two Virginians from the Richmond-based fourth circuit court of appeals: J. Harvie Wilkinson, III, and J. Michael Luttig, both thoughtful conservatives.

Wilkinson, 61, was once a law clerk to Justice Lewis F. Powell, Jr., and is a respected author on both modern Virginia political history and the federal judiciary. He was appointed to the appeals court in 1984 by Reagan and was for seven years its chief judge. (Interestingly, his nomination failed one cloture vote but survived a subsequent one.)

Luttig is 50 years old and was appointed to the appeals court by the first President Bush in 1991. In the mid- to late-80s, he was a law clerk for Scalia, then an appeals court judge on the D.C. circuit, and later for Supreme Court Chief Justice Warren Burger.

Virginians have a long history in shaping the federal judiciary. More than 200 years ago, it was Chief Justice John Marshall who served for 34 of the court’s most formative years.

Today, it’s a Virginia senator whose electoral work will play an indirectly critical role in the ease with which Bush in his next term will be able to direct the court in an increasingly conservative direction – and, coincidentally, it could be so driven by adding yet another conservative Virginia jurist (or two?) to it.