With the one-hundred-day mark of George W. Bush’s presidency still visible in the rearview mirror, the “compassionate conservative” campaign mantra appears to be tilting more and more to the conservative rather than the compassionate. The left can take some solace in the ethnic diversity of his appointments and his emphasis on education while the right celebrates his insistence on huge tax relief and his appointment of John Ashcroft as attorney general. Bush’s true colors, however, will not appear until he starts nominating folks to the federal judiciary. A place on the federal bench is forever, or at least for life, and a president’s judicial appointments reveal his fundamental beliefs in a way that more transitory political moves don’t. The stakes will never be higher, nor more high-profile, than when Bush fills vacancies that occur on the U.S. Supreme Court.Four spots could come open during the next four years, covering the court’s entire ideological spectrum. On the right is 76-year-old chief justice William Rehnquist; on the court’s liberal wing, John Paul Stevens, the eldest justice at 81, and Ruth Bader Ginsburg, 68, are both cancer survivors. Sandra Day O’Connor, also a cancer survivor at 71, is regarded as a centrist. The Washington rumor mill has Stevens and O’Connor leaving as early as this summer.
Depending on who leaves and how soon, the makeup of the court could change dramatically. If Bush were to act on his stated admiration for justices like Antonin Scalia and Clarence Thomas, he could swing the court on abortion, affirmative action, and an assortment of other individual-rights and federal-powers issues and change the American political scene for the next two decades. But first his appointees would face a confirmation battle in the Senate—and in the court of public opinion—that could be as frenzied as his Florida recount fight.
Three Texas jurists are said to be on the relatively long short list for court appointments: Fifth Circuit Court of Appeals judges Edith Jones of Houston and Emilio Garza of San Antonio, and governor’s counsel turned Texas Supreme Court justice turned White House counsel, Bush legal handyman and supreme loyalist Alberto Gonzales.
Jones, 52, and Garza, 53, are the better-known quantities, with a combined 26 years of service on the Fifth Circuit. Both were widely reported to be finalists for Supreme Court seats that ultimately went to David Souter and Clarence Thomas during the elder George Bush’s administration. Jones and Garza are considered hard-shell conservatives; as David Dow, a University of Houston constitutional law professor who has handled more than fifty cases before the Fifth Cir-cuit, puts it, they are “on all fours with Rehnquist in the most significant thing his court has done, which is to dramatically alter the balance of power from the federal government to the states.”
Despite her background in the dry field of bankruptcy, Jones would be the most controversial choice by far. When her name surfaced a decade ago as a possible pick by the elder George Bush, critics charged that she was too extreme for the Supreme Court. But it’s not just her conservatism—as evidenced by a 1997 opinion that threw out a federal ban on possession of machine guns—that drew their ire; it’s the way she parades it on hot-button issues like sexual harassment and capital punishment. In 1989’s Waltman v. International Paper, an attorney argued that Waltman, a female paper plant employee, had endured three years of sexual graffiti, notes, and propositions from male co-workers, along with having her breasts grabbed and her butt pinched with pliers. Jones’s position—that the allegations did not constitute sexual harassment—would have been controversial enough. But according to published accounts of the oral arguments, Jones said to the woman’s attorney, “Well, your client wasn’t raped,” and pointed out that the breast-grabber later said he was sorry.
However, what would get the most attention in a confirmation fight is her unsympathetic (to put it mildly) approach to capital punishment. Jones has published articles and lectured prosecutors and judges on how to speed up death penalty appeals. She once complained to attorneys in a teleconference hearing that a last-minute request to stay an execution was causing her to miss her six-year-old son’s birthday party. In the now famous “sleeping lawyer” case, Burdine v. Johnson, Jones upheld the conviction of a Texas capital murder defendant whose attorney, by all accounts, had snoozed through significant portions of his trial. The court’s opinion, joined by Jones, held that these naps by Burdine’s court-appointed representative did not violate Burdine’s Sixth Amendment guarantee of the right to counsel unless Burdine could prove the attorney slept through important parts of the trial. The case is being reviewed by the entire Fifth Circuit and an en banc opinion is expected soon.
Garza would be a less controversial pick than Jones, and his Spanish surname would be a plus: It is widely thought that Bush wants to be the first president to nominate a Hispanic to the court, and no Democrat wants to be known as the person who shot him down. Garza’s philosophy is similar to Jones’s. “Emilio would not be driven to create new laws, discover new rights,” says Lino Graglia, a University of Texas law professor and conservative icon. “He would be, like Edith, willing to resign himself to the appropriate judicial role of self-restraint.” But Garza’s low-key conservatism stands in sharp contrast to Jones’s unapologetic rhetoric. In last year’s Flores v. Johnson, Garza went so far as to criticize one of the more draconian death penalty developments, picking apart the trial court’s basis for allowing so-called Dr. Death testimony—expert witness testimony on the future dangerousness of a capital murder defendant by a psychiatrist who had never interviewed the accused.
Another case where Garza did not hold his tongue was an abortion case, and with Roe v. Wade being every bit the litmus test for the left that Bush swears it is not for him, Garza’s comments could come back to bite him. In Causeway Medical v. Ieyoub, the Fifth Circuit struck