Who Would Bush Appoint to the Supreme Court?

The next president is sure to nominate at least two Supreme Court justices. John Paul Stevens, 79, and William Rehnquist, 75, are widely expected to step down within the next four years. Ruth Bader Ginsburg, who had colon-cancer surgery last year, and Sandra Day O'Connor, who is nearing 70 and was treated for breast cancer a decade ago, could also step down. If they do, the new president could get four picks (see "Balancing Justice," below right).

With George W. Bush one election away from the presidency -- and from shaping the direction of the US Supreme Court for the next generation -- why have we heard so little about his record with the judiciary in Texas? Left-leaning court watchers, including Harvard Law professor Alan Dershowitz, say the Texas court system is one of the most pro-business, anti-labor, and anti-plaintiff systems in the country. Furthermore, they say, this is a new development. There was a time when down-home Texas populism was reflected in judicial elections and in jury verdicts that awarded plaintiffs large sums of money. In recent years, however, the Texas courts have come to exhibit a rock-ribbed conservatism. And at every juncture, Bush has sided with conservative initiatives to roll back plaintiffs' rights in favor of big money and big business.

"That whole court system in Texas bears his imprimatur -- every court level in Texas," Dershowitz says.

Senator Ted Kennedy, the second-highest-ranking member of the Senate Judiciary Committee, which vets Supreme Court nominations before the vote in the Senate, says that the issue of Supreme Court appointments is paramount. In a statement provided to the Phoenix, he says: "A president's appointments to the Supreme Court are among the longest-lasting legacies of any administration. The current court is often closely divided on key issues, and poor choices could easily result in judicial retreats on civil rights, women's rights, criminal justice, privacy, and the First Amendment."

Representative Barney Frank, the second-highest-ranking Democrat on the House Judiciary Committee, agrees. "You have some important doctrinal questions that are undecided," he says. "The abortion question is up for grabs. Gay and lesbian rights. Church-state issues. Nothing is more important than the Supreme Court justices the next president will pick."

A Bush presidency, Frank warns, would surely mean the appointment of justices who "substantially erode" the separation of church and state. Bush is, after all, the governor who authorized his attorney general to challenge a legal ruling that banned school prayer at school football games. That case is currently before the US Supreme Court.

The best predictor of the kinds of choices Bush would make for the US Supreme Court, though, is the direction he's taken with the Texas Supreme Court. Although Texas high-court judges (who hear only civil matters) are elected to office, the governor of Texas is responsible for filling vacancies when sitting justices step down. Bush has done this four times. His picks: Deborah G. Hankinson, Greg Abbott, James A. Baker (no relation to the James Baker who served as President Bush's secretary of state), and Alberto R. Gonzales. These appointees come from mainstream conservative backgrounds. Like Bush, they present a happy, diverse image of conservatism. One of them, Gonzales, is Latino. Another, Abbott, gets around in a wheelchair. Hankinson is a woman. But make no mistake: they come from big-business backgrounds and support efforts to limit plaintiffs' rights.

On the campaign trail, Bush has said he would appoint "strict constructionists" to the Supreme Court -- justices who would "strictly interpret the Constitution and not use the bench as a way to legislate." This type of strict interpretation is a conservative touchstone, but if Bush's Texas high-court picks are any indication, he'd choose justices who would apply just the opposite philosophy -- in pursuit of conservative ends. James Harrington, the director of the Texas Civil Rights Project, says that Bush's picks have made it harder to "litigate civil rights, consumer rights, workers' rights." He adds that these justices care more about conservative political correctness than legal reasoning. They are, in Harrington's words, "results-oriented" -- conservative judicial activists hiding behind the constructionist label.