Campaign for the Supreme Court

Byline: Fred Barbash

The Supreme Court is currently the focus of much speculation and scrutiny following the recent retirement announcement by Sandra Day O'Connor and rumors that Chief Justice William Rehnquist may soon follow suit.

Washington Post staff writer Fred Barbash, who is writing a new blog on the Campaign for the Supreme Court, was online Thursday, July 14, at 11 a.m. ET to discuss the latest news about the Supreme Court.

A transcript follows.

____________________

Herndon, Va.: Isn't it a bit puzzling that while Ruth Bader Ginsburg, received a 97 - 3 confirmation vote even though she was certainly outside of the mainstream, her greatest champions now decry the possibility that the same deference will be afforded President Bush's nominee. It appears that the Republicans parked their political objections at the door and based their vote on her pure qualifications as a jurist.

Fred Barbash: Historically, members of Congress have allowed the President to have the Supreme Court he pleases, with just a few exceptions. Those exceptions tend to be based on political factors exceptional to the particular moment, as well as a calculation as to whether the votes are potentially there to defeat a nominee. I don't think the Republicans felt either a need to defeat Ginsburg or a desire to spend capital doing so..so they didn't.

_______________________

Falls Church, Va.: I read on the Supreme Court Watch Web site that hearings probably won't take place until after Labor Day. Why the delay? Is it because, as this site states: "There must be time for the government to go through its security and background checks before the hearing"...or, is it, I wonder, because the administration doesn't want to give the media names to drag through the mud all summer.

Fred Barbash: I can't judge motives. But administrations have traditionally preferred quick action so that there is as little time as possible for potential opposition to reach critical mass while opposition parties have wanted more time to get a sense of the candidate and the climate. It does take quite a bit of time to gather the materials and witnesses on a nominee. It's a very big task. And then, of course, there's vacation and recess.

_______________________

Vienna, Va.: I have been remembering the Bork hearings and the mini-scandal when the City Paper published a list of the videos Judge Bork had rented at the local rental place. My question: was it Erol's? I really want to know.

Fred Barbash: I don't remember which video shop it was, though I remember the incident and remember reporting on it. Try googling it.

_______________________

Washington, D.C.: Fred,

Tracheotomy or tracheostomy? You used both terms at 3:15 AM today and Nina Totenberg used the latter on NPR this morning.

Fred Barbash: You noticed....We have used both in The Post as well. We should get it straight. Apparently there is some slight difference.

_______________________

Weems, Va.: Does anyone really think that President Bush will choose an O'Connor look alike to replace her? If so, who, of the likely choices best fits the description? Wilkinson? He is a legal scholar, has long experience as chief judge of the 4th circuit, and he clerked for Powell.

Fred Barbash: Thanks for the question. I don't personally think he'll try for an O'Connor clone. I do think he'll want someone confirmable without too much combat, as he is trying to run a war now and surely does not want a donnybrook in the Senate. Judge Wilkinson, by all accounts, is a thoughtful judge. But unlike Justice O'Connor, he does not really have a background in politics.

_______________________

Edison, N.J.: Why do you think Harry Reid has been requesting that members of the United States Senate be considered for the Supreme Court? My first guess would be that he thinks they'll have a smooth confirmation. Or because he wants to flatter them before they'd have to vote on another nominee. But is there anything else behind these requests?

Fred Barbash: I don't know, honestly. This happens every time there's a court vacancy, going way way back. There was a big move to get Howard Baker appointed to the court during the Nixon years but he wouldn't do it. It seems natural for these folks to try to get good jobs for their buddies...

_______________________

Belle View, Va.: Good morning, Has Rehnquist ever apologized, or renounced, his well-publicized attempts to keep black citizens from voting? This happened during the 60's, but seems very current in light of today's story in The Washington Post regarding the Republican Party's apology to the NAACP for using racial hatred as the core element in their "Southern Strategy"? Many thanks!

Fred Barbash: I would have to research this one. Without passing judgment on him, it is my recollection that Rehnquist has taken issue with his critics' descriptions of what he was doing back in Arizona and therefore believed there was nothing to apologize for.

_______________________

Anonymous: Do you believe there is anything to the speculation that Ginsburg and/or Stevens may retire?

Fred Barbash: It's speculation and only speculation. I am not privy to any solid information on this.

_______________________

Washington, D.C.: In comparing why the arch-liberal Ginsburg won a 97-3 vote, might another reason be that Republicans compromise and Democrats don't? Look over history - Bork, Thomas, Ashcroft, Bolton...either they were defeated by Democrats or they were narrowly confirmed only because of heavy Republican support.

Fred Barbash: I don't think either party has an exclusive claim to compromise. I think the Republicans, for years, were not in a position to challenge nominees and had no political interest in doing so. This business of mass mobilization over Supreme Court nominees really got started in the Nixon era....Haynsworth, Carswell..etc., Carter had no Supreme Court openings to fill, so the GOP had no one to challenge. We've discussed the Ginsburg nomination which the GOP chose not to fight. I believe it's case by case when it comes to the Supreme Court, as opposed to the appellate courts.

_______________________

Chantilly, Va.: Hi Fred: Please just tell me it's unlikely Bush will nominate one of his pet wackjobs like Judges Brown or Owen?

I can see someone like Wilkinson flying through the Senate; surely he's conservative enough to appease the GOP base and mature enough to keep the Democrats from going nuts.

Fred Barbash: Hi. I can't help you out there. It is interesting that all the discussion of "wackjobs" will make life easier for Bush if he then goes ahead and appoints a non-wackjob, who, even if conservative, will seem like a consensus choice. It's all a matter of expectations.

_______________________

Chantilly, Va.: I thought Rehnquist was accused of harassing Hispanics, not blacks?

Either way, it's water under the bridge now.

Fred Barbash: I'd have to research that. My memory is failing me. My memory was generally minorities.

_______________________

Silver Spring, Md.: I have great respect for Justice O'Connor, even though I do not always agree with her. I recognize her desire to be with her husband and family. However, given the current climate in Washington, I wish she has shown more public service interest and said, I will stay because of the turmoil my departure will create. Do you think she might do so if the Chief Justice leaves the court?

Fred Barbash: Several senators have publicly urged Bush to appoint O'Connor Chief Justice if Rehnquist leaves. I think she would find that difficult to accept. One day she says her husband is so sick she has to devote herself to him. The next she says, oh, never mind. This job is too good. Forget the husband. She is really really devoted to John. I know them both and I believe that she now feels a sense of mission that she would not abandon.

_______________________

Sacramento, Calif.: What are the odds of Judge Janice Rogers Brown being named to the U.S. Supreme Court either now, or if, say, Justice John Paul Stevens retires?

Fred Barbash: I wouldn't give odds. Some of that would depend on what happens with the other vacancies.

_______________________

Ashland, Mo.: Given the Supreme Court's Casey decision, hasn't Roe v. Wade already essentially become irrelevant? Moreover, hasn't Justice Kennedy's evolution ensured that there will not be any significant change in the Court's direction on cultural issues regardless of who succeeds Justice O'Connor and Chief Justice Rehnquist?

Fred Barbash: There are many who agree with you on that. The history of the court shows us that change comes very very very slowly...think decades and generations rather than years--and is the result of wholesale change in the court over a period of years and a variety of administrations. The court rarely acts abruptly.

_______________________

Washington, D.C.: Yesterday President Bush said he was considering "judges and non-judges" to replace O'Connor. Does that mean he is not considering former judges, like Louis Freeh?

Fred Barbash: I watched him speak. I think what he was trying to say is...yeah, yeah..I'll consider anyone anybody asks me to consider...I think he's trying to get the mob off his back.

_______________________

Ottawa, Canada: Why is it that the judges on your Supreme Court have a life time appointment? In Canada when judges reach seventy five they must retire. Do you feel that if your judges were forced to retire it would help or hinder the performance of your Supreme Court?

Fred Barbash: The group in the Constitutional Convention of 1787 who wrote that clause believed that judges would become politicians if they were constantly worrying about the next job. They really wanted judges to be independent. I doubt that it would make too much difference if, say, there were a mandatory retirement age or term limit for judges.

_______________________

Washington, D.C. : Besides the special case of Abe Fortas, have the Republicans when they were in the minority ever challenged/thwarted a Supreme Court nominee like the Democrats have with Bork and Thomas and plan to do again?

Fred Barbash: Nope.

_______________________

Syosset, N.Y.: Hi. Interesting discussion. I have a silly question....

Would a SC Justice be "insulted" if you called them "Judge" Scalia rather than "Justice" Scalia?

Fred Barbash: I suppose it depends on the vanity meter. In the courtroom, lawyers often call a justice "your honor" as well as "Justice Scalia" or "Justice O'Connor." I've never heard "judge" deployed in that setting. It wouldn't be done.

_______________________

Falls Church, Va.: You don't know why Reid suggested a Senator? Are you really qualified to run this blog then? For a long time justices came from politics. Warren was a Governor for example. Former politicians have more of a tendency to consider both sides of an argument and are more likely to compromise than ideologues such as Scalia who use his position as a bully pulpit.

Fred Barbash: Like Justice Black? Like Justice Douglas? I think that's a myth, that former politicians tend to do one thing while judges tend to do another. Politicians think they are somehow more exposed to the "real world" than judges-that's what these guys said the other day..."practical experience." But then they went in and gave Bush a whole bunch of names of appeals court judges...How come?

_______________________

Morristown, N.J.: It is my understanding that the Senate vote in favor of confirming Antonin Scalia was something like 98-2.

How can the Democrats now oppose someone who they feel has the same judicial philosophy of the person they overwhelmingly endorsed? Doesn't that come across as plainly hypocritical? How can they argue that their motivation is not political?

Fred Barbash: Good Morning and thanks for joining us.

Regarding the question from Morristown, you may recall that the Scalia nomination came on top of the Rehnquist nomination. The Democrats made a strategic decision to challenge Rehnquist and, essentially, ignore Scalia. As a reporter, it's not for me to say whether one side or the other was hypocritical. I will say, however, that having covered or observed most of the confirmation proceedings since O'Connor, that all sides claim to be acting in an apolitical fashion when plainly, they are politicians acting politically. No surprise there.

_______________________

Arlington, Va.: Is there any chance that Roy Moore will be nominated. President Bush seems to delight in infuriating the left while pleasing his most conservative supporters. Wouldn't this be a perfect choice? If the Democrats tried to filibuster, the Republicans can just use the nuclear option, which everyone expects.

Fred Barbash: I'll go out on a limb....No chance whatsoever of Roy Moore. The Republicans would die....It's too blatant.

_______________________

Washington, D.C.: It seems to me that one of the best, smartest and most conservative judges in America is Richard Posner. He is so well respected that I, as a liberal, would vote to confirm him were I in the Senate. Any chance? Is it because of his age? Or is it because of his widely noted tendency to go wherever his law/economics philosophy tends to lead him?

Fred Barbash: A guess: Too smart. Too outspoken. Too prolific (paper trail.) Too many opportunities for potshots. He is indeed an superior intellect...so was Robert Bork. It can be a handicap.

_______________________

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

COPYRIGHT 2005 Washingtonpost Newsweek Interactive
COPYRIGHT 2005 Gale Group