Supreme Court Now For The Real George Bush?

FORECASTS & TRENDS E-LETTER
By Gary D. Halbert
July 5, 2005

IN THIS ISSUE:

1.  The “Balance” In The Supreme Court 

2.  Tens Of Millions Lined Up For This Fight

3.  Bush’s Strategy – What Will It Be?

4.  My Advice To President Bush

5.  Janice Rogers Brown To Replace O’Connor

Introduction – Supreme Court Vacancies

Last week, Supreme Court Justice Sandra Day O’Connor announced her resignation.  Most of the political pundits expected Chief Justice Rehnquist to retire first due to his battle with thyroid cancer, which he is not expected to survive.  In any event, most feel he will also retire very soon.  So, President Bush will have two Supreme Court appointments in what remains of his second term, and few disagree that these two High Court appointments will make or break his legacy.

The political scene on both sides is buzzing about what President Bush will do.  Will he nominate two right-wing conservatives and battle it out with the Senate?  Or will he acquiesce and nominate two moderate judges that he knows he can get confirmed? Or will he split the middle and try to get one true conservative and settle for one moderate on the Supreme Court?  This all remains to be seen.

With a very contentious Democratic minority and several moderate Republicans in the Senate, President Bush has a delicate choice on his hands with regard to his Supreme Court nominees.  With two nominees, it will be very interesting to see which strategies Bush chooses to pursue.

As will come as no surprise to long-time readers of this E-Letter, I have an opinion on what the president should do, as I will reveal as we go along.  But I also have my doubts regarding whether he will choose to follow the strategy I suggest.  This is where we get to see the real George W. Bush.

Whatever President Bush chooses to do, his two Supreme Court nominees will shape the face of judicial legislation for decades to come.  Everyone knows this.  President Bush has been thinking about it for a long time.   So, let’s flesh out the issues this week.

The “Balance” In The Supreme Court

To begin our discussion of the Supreme Court, we must revisit the current Court.  There are three conservative-leaning justices – Rehnquist, Scalia and Thomas; there are four liberal-leaning justices - Ginsburg, Stevens, Breyer and Souter; and that leaves justices Kennedy and O’Connor somewhere in the middle, siding frequently with both sides, depending on the issue.

I spent a good deal of time over the holiday weekend watching the talk shows and observing what commentators on both sides think Bush should do in terms of Supreme Court appointments.  I also spent time reading the various opinion pieces from writers on both sides at realclearpolitics.com to see how the pundits were lining up on the liberal side and the conservative side with regard to Bush’s possible nominees.

The most surprising thing I noticed, based on what I watched and read over the weekend, was that the liberals are willing to give Bush Alberto Gonzales to replace Sandra Day O’Connor.  Several leading liberal commentators even recommended that Bush appoint Alberto Gonzales to replace O’Connor. 

This surprised me because Gonzales is considered to be a conservative on most issues, except that he is believed to be pro-choice (abortion).  It is clear that the real “litmus test” for liberals is pro-abortion, just as pro-life is the litmus test for many conservatives.

The liberal commentators argued over the weekend that Bush absolutely must nominate a “swinger” to replace O’Connor, a judge who will vote with either side, depending on the issue.  Except for abortion, that is.  Most liberals vow that O’Connor’s replacement must be pro-abortion, even if that means he or she might be more conservative on other issues.

So the advice from the left over the weekend was that Bush should nominate Alberto Gonzales to replace Sandra Day O’Connor.  While they didn’t say it directly, in so many words, the message was clear: President Bush, Gonzales is the most conservative judge you’re going to get.      

Tens Of Millions Lined Up For This Fight

As you have probably heard, liberal groups and conservative groups have amassed huge war chests to fight the battle over these two Supreme Court nominees, whoever they are.  Estimates are all over the board regarding just how much money is already in the coffers of liberal groups like MoveOn.org (George Soros, et al) and others and conservative groups like the Christian Coalition and others. 

But it is generally agreed that these activist groups on both sides already have at least $20 million each in their coffers to fight the Supreme Court nominees, whichever way President Bush chooses to go.  In all, estimates are that over $100 million in total will be spent by the two sides to fight Bush’s nominees, regardless of who he selects.  

The conservative and religious groups will fight any nominee that is pro-abortion, and the liberal groups will fight anyone who is pro-life.

Bush’s Strategy – What Will It Be?

In both of Bush’s presidential campaigns, he promised to appoint conservative judges to the courts, including the Supreme Court.  However, we have seen numerous occasions where President Bush has disappointed his conservative base (steel tariffs, farm bill, immigration, spending, etc.).  

So it remains to be seen if President Bush will nominate true conservatives to the High Court.  I would not be surprised if Bush’s top advisors are giving him the following analysis:

Look Mr. President, we know you want to nominate true conservatives, but we are not going to be able to get them confirmed in the Senate.  The “Gang of 14” controls the Senate, and Republican Gangmembers Olympia Snow, Lindsey Graham, Mike DeWine, Susan Collins, John Warner  - and maybe even John McCain – will not support a true conservative for the High Court.
Further, the political fallout is potentially deadly.  Imagine what the mood of the American people will be if you are still battling for true conservative judges come next October when the Supreme Court convenes, potentially lacking two justices.  The media will crucify you as never before.  Senate Republicans will want your head.
The better course would be to nominate justices that we know we can get through.  Over the weekend, the liberals let it be known that they could live with your old friend Alberto Gonzales to replace O’Connor.  They also insinuated that they might give you a fairly conservative judge to replace Rehnquist, if you give them Gonzales.  This is the way you need to go.

I hope this is not the advice President Bush is being given.  But it would not surprise me.  We’ll know as soon as we hear the president’s first nominee, perhaps as early as this Friday.

Here are the four most conservative candidates thought to be on Bush’s list of consideration for the Supreme Court vacancies: J. Michael Luttig, US Appellate Judge, Fourth Circuit; Janice Rogers Brown, US Appellate Judge, DC; Theodore B. Olson, former Solicitor General; and J. Harvie Wilkinson, US Appellate Judge, Fourth Circuit. 

Of those four, Judges Luttig and Rogers Brown are considered to be the most conservative, but all four are believed to be anti-abortion.  If any of these judges are nominated, the Democrats and liberals will go ballistic!    For a longer list of possible Supreme Court nominees, see the first link in SPECIAL ARTICLES at the end of this E-Letter.

Again, we’ll know which strategy Bush has decided to take when he makes his first nominee known, perhaps late this week, or it could be several more weeks.  Will he nominate Alberto Gonzales, who would likely be confirmed without much of a fight, but would turn off many conservatives?  Or will he go for a true conservative, pro-life judge and be ready to battle it out over the summer and fall?

My Advice To President Bush

If I were an advisor to President Bush, I would urge him to go with one of the true conservative judges noted above.  Why?

First off, if Bush is indeed a true conservative, he should go with his gut.   Nominate a true conservative judge as his first pick.

Second, and perhaps most important as I see it, make the liberal activist groups spend all their money on the first selection.  Maybe Bush gets his first nominee, maybe he doesn’t.  But either way, they will have less money to fight the second nomination.

Third, there is NO guarantee that if Bush nominates Gonzales to replace O’Connor that the Gang of 14 will give him a more conservative judge to replace Rehnquist as they insinuated over the weekend.  Do not believe that the days of the filibuster are over!

Fourth, I absolutely believe that the liberal activist groups will oppose any conservative judge Bush appoints – including Alberto Gonzales, and even if the Democrats would accept him.   Liberal groups like MoveOn.org, People for the American Way, the Alliance for Justice, and others will oppose ANY Bush nominee – including Gonzales - with every ounce of strength they have.

Here’s why.  These groups exist for the sole purpose of defeating Republicans and in particular, Bush’s judicial nominees.  Their financial supporters - the big money people writing huge checks and those sending in small amounts in response to direct mail appeals - would be furious if they meekly accept a Bush appointee, as Republican senators did when Bill Clinton nominated liberal judges Stephen Breyer and Ruth Bader Ginsburg.

As columnist Michael Barone put it today, “Not opposing [Bush’s] nominees would be an act of self-destruction for these groups, and Washington lobbying groups are not in the habit of self-destruction.”

Conclusions

The bottom line is that it is possible Bush could cut a deal with the Gang of 14 with a nomination like Gonzales to replace Justice O’Connor.  That message came across loud and clear on the Sunday talk shows and in numerous high profile editorials over the weekend.

There was also the insinuation that if Bush nominates Gonzales to replace O’Connor that the Gang of 14 might accept a slightly more conservative judge to replace Chief Justice Rehnquist when he steps down this summer.

But this could also just be a trap.  The Gang may be trying to convince Bush to nominate Gonzales in round one, only to renege when it comes to the second appointment and insist that Bush nominate someone more moderate.  In my view, Bush should not trust any of the seven Republican members of the Gang of 14!

Furthermore, I fully expect the Democrats in the Senate to filibuster any nominee that is considered too conservative or pro-life.

Either way Bush goes, his nominations are going to face a record-breaking fight – either from the liberal activist groups, or from the conservative and religious activist groups.

This is why I think Bush should go with the nominees he really wants, presumably the more conservative judges I have listed above.  Specifically, if I were advising President Bush, I would urge him to nominate Janice Rogers Brown to replace Sandra Day O’Connor. 

Janice Rogers Brown is a woman (to replace a woman); she is young (56); she is highly respected (nine years on the CA Supreme Court); she is a self-described conservative; she is a strict constitutionalist; and she is black.  But she supports parental notification prior to abortion for girls under the age of 18, so the left despises her.

If Bush appoints her, as I hope he does, the left will go ballistic!  It will be most interesting to see the liberals go after a black woman with her credentials.

Senators Ted Kennedy and Joe Biden both wrote nationally published editorials yesterday and today warning President Bush not to nominate a hard-core conservative to the High Court.  These two ranking Democrats would not do that if they weren’t seriously worried that Bush will choose the path I have suggested above.

Yet my point is, the liberal activist groups are going to fight any Bush nominees, in part just because he is George W. Bush.  So I urge him to pick a true conservative, and to make his most difficult nomination the first one.  Make the left spend its tens of millions on the first nominee.

That also means that the Republican Senators will have to make a choice: 1) Bow to the special interest groups and risk a backlash of public opinion (and maybe their re-election); or 2) stand behind the president and confirm his appointments.  Obviously, I would prefer the latter, but I am glad they will have to choose one way or the other.

So, at the end of the day, we don’t know which path President Bush will choose to take, nor do we know how the Republican Senators will choose to go.   What we do know is that one side or the other – liberals or conservatives – is likely going to be hopping mad, and the fight will be on.  

It will be an interesting rest of the summer!

Very best regards,

Gary D. Halbert

SPECIAL ARTICLES:

Possible Supreme Court Nominees
http://www.washingtonpost.com/wp-dyn/content/article/2005/07/01/AR2005070100756.html

Wall Street Journal: Why not Janice Rogers Brown?
http://www.opinionjournal.com/columnists/bminiter/?id=110006914

O’Connor, not Rehnquist, is the most important.
http://www.post-gazette.com/pg/05184/531880.stm

New York Times describes different types of judges.
http://www.nytimes.com/2005/07/03/weekinreview/03rosen.html?pagewanted=all


Forecasts & Trends E-Letter is published by ProFutures, Inc. Gary D. Halbert is the president and CEO of ProFutures, Inc. and is the editor of this publication. Information contained herein is taken from sources believed to be reliable but cannot be guaranteed as to its accuracy. Opinions and recommendations herein generally reflect the judgement of Gary D. Halbert, Mike Posey (or another named author) and may change at any time without written notice. Market opinions contained herein are intended as general observations and are not intended as specific investment advice. Readers are urged to check with their investment counselors before making any investment decisions. This electronic newsletter does not constitute an offer of sale of any securities. Gary D. Halbert, ProFutures, Inc., and its affiliated companies, its officers, directors and/or employees may or may not have investments in markets or programs mentioned herein. Past results are not necessarily indicative of future results. Reprinting for family or friends is allowed with proper credit. However, republishing (written or electronically) in its entirety or through the use of extensive quotes is prohibited without prior written consent.

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