WASHINGTON -- Presidents come and presidents go, but the Supreme Court hangs around forever.
Or so it seems.
Battles with Congress may frustrate a president's agenda. Members of the opposing party, if strong enough, may try to render the chief executive irrelevant. But if a president has the opportunity to nominate candidates for the Supreme Court, and has a reasonable chance of getting the nominees through the Senate, those choices will shape how people live in the United States for decades to come. Like all federal judges, Supreme Court justices are allowed to serve for life, pending "good conduct," and can only be removed by retirement, death or impeachment.
As voters prepare to vote Nov. 2, with either incumbent President George W. Bush or Sen. John Kerry, D-Mass., likely chosen to lead the nation, a hyperventilating media is once again speculating on the picks each would make for the highest court if given the chance.
Fueling the great guessing game is the fact that there hasn't been a vacancy on the Supreme Court in a decade -- the longest period without a vacancy since the 1830s.
None of the court members has given the slightest indication he or she will step down soon, but all of them except Justice Clarence Thomas are older than 65. Many media scenarios center on Chief Justice William Rehnquist retiring. A flurry of reports over the last several years pointed to inside information that Rehnquist was about to step down, but each report proved false. Rehnquist himself has been keeping his plans pretty close to his vest, both privately and publicly. Factors that could lead to his retirement include his health. The chief justice has severe back pain and must leave the bench at least once during each argument, going through the curtain behind the bench and walking the hall in an attempt to ease the ache. He also appears to injure a joint or break a bone at least once during each term. Another factor is his age. Rehnquist turned 80 on Oct. 1.
But age isn't everything, especially on the Supreme Court. A number of justices have served well into their 80s without much trouble. The job isn't exactly strenuous. The current Supreme Court has the lightest caseload in its history.
Rehnquist also has a realistic record to aim for: longest-serving member of the Supreme Court. The late Justice William O. Douglas served for more than 36 years, from 1939 until 1975. Rehnquist has served 32 years, from 1972 to the present. If he can hang on for just less than five more years, he will have topped Douglas.
Another factor that could weigh in either direction is the occupant of the White House. Conventional wisdom says the conservative-leaning Rehnquist will hold on until a Republican president has a chance to name his replacement. Nothing in Rehnquist's character, however, suggests that he will not go precisely at the time of his own choosing, no matter who is president.
But supposing for argument's sake that Rehnquist does step down next term or sometime over the next four years? How would President Bush or President Kerry replace him?
When running for the top job in 2000, Bush said he admired Justices Antonin Scalia and Thomas the most among the current members of the high court. The two justices are the most conservative members of the court and usually vote in lock step.
Neither would stand much of a chance in the closely divided Senate of being confirmed chief justice.
Scalia is the poster boy of judicial evil for the Democrats. Thomas is the most reticent and understated justice on the bench, and though privately a compelling personality, rarely speaks in argument or shows leadership in major cases.
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A recent biographer contends that the White House has sounded out Thomas, the court's only black member, as a possible Rehnquist replacement. The report is not taken seriously at the Supreme Court.
For several years, court watchers believed moderate Justice Anthony Kennedy might be lobbying the Bush White House for the job. The rumors turned white-hot when Kennedy and first lady Laura Bush teamed for a democracy education program in the wake of the Sept. 11, 2001, terror attacks.
However, Kennedy still supports Roe vs. Wade, the landmark 1973 decision recognizing a woman's right to an abortion -- even though he has softened his position by voting to uphold bans on "partial-birth" abortion -- and he is a champion of gay and lesbian rights. Either position is enough to make him roadkill to Bush's core supporters.
Another current court member, Justice Sandra Day O'Connor, was the subject of rumors several years ago as a possible Rehnquist replacement. However, at 74, she is six years older than Kennedy, and if given the chance to name a chief justice, Bush would be expected to tap someone who could serve for some time.
Which leaves the universe of possible conservative nominees outside the high court for Bush to choose from, either as chief justice or to replace another retiring justice.
The president does not have to nominate a U.S. appellate judge, though much of the media speculation centers on that class. He could pick a politician -- such as Attorney General John Ashcroft or Senate Judiciary Chairman Orrin Hatch, R-Utah -- to replace a justice.
There is also considerable speculation that Bush could choose a "stalking horse" -- someone, like Ashcroft, whose nomination would certainly be stalled amid bitter partisan fighting.
After a respectable period, the nominee would withdraw his or her name at the president's private request, and Bush could appoint a less controversial, equally conservative candidate who would have relatively smooth sailing in the Senate. The latter class of candidate would include White House counsel Al Gonzales, a former Texas Supreme Court justice and Bush pal; U.S. Judge Michael Luttig, on the conservative U.S. Court of Appeals for the 4th Circuit, which has headquarters in Richmond, Va. (Luttig's father was murdered and his mother nearly killed by a brutal juvenile killer who was subsequently executed in Texas); U.S. Judge J. Harvie Wilkinson, also on the 4th Circuit; U.S. Judge Emilio Garza, on the even more conservative 5th Circuit, with headquarters in New Orleans; and U.S. Judge Edith Jones, also on the 5th Circuit.
Or Bush could pick from others not on that short list. Of those most mentioned, Luttig is considered the brightest star; Gonzales is considered the closest to Bush. Two of the most qualified possible candidates will never be nominated. Former U.S. circuit judge and independent counsel Kenneth Starr and former U.S. solicitor general Theodore Olson, both undeniably brilliant conservative lawyers, are too closely identified with political attacks on President Bill Clinton in the 1990s. Nominating either would be like throwing gasoline on a house fire.
If a putative President Kerry gets to replace Rehnquist, a less-likely scenario, one of his leading candidates should be current Justice Stephen Breyer.
Self-deprecating and unfailingly polite on the bench -- in marked contrast to Scalia -- Breyer is the least liberal of the four liberals on the Supreme Court.
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Though a native of California, Breyer's ties reach deep into Kerry's Massachusetts. After his undergraduate days at Stanford and a stint at Oxford, Breyer was editor of the Harvard Law Review. He worked as a clerk for Justice Arthur Goldberg and then became a Watergate prosecutor.
In 1974 his mentor, Sen. Ted Kennedy, D-Mass., tapped Breyer to be special counsel for the Senate Judiciary Committee. Eventually he was promoted to chief counsel.
Those Senate Judiciary contacts came in handy in 1980 when President Jimmy Carter named him to the U.S. Court of Appeals for the 1st Circuit, which has headquarters in Boston, where Breyer rose to become chief judge. Kennedy lobbied hard for Breyer's nomination when a high-court seat became vacant in 1993, but Clinton opted for Justice Ruth Bader Ginsburg, then on the U.S. Court of Appeals for the D.C. Circuit.
When Clinton's second and final opportunity to name someone to the court came the following year, Kennedy again pressed for Breyer, and this time Clinton appointed him. Again, his contacts on both sides of the aisle helped in his Senate confirmation. The harshest criticism came not from Republicans, who were gentle on the nominee, but from witness Ralph Nader, who thought Breyer was too close to big business interests.
Breyer's popularity in Congress could help avoid a political bloodbath in the closely divided Senate should he be tapped to succeed Rehnquist. Kerry's other possible picks, either for chief justice or associate justice, could come from a relatively short and much-discussed list that includes U.S. Judge Jose Cabranes of the 2nd Circuit, a Puerto Rico native who like Gonzales could become the court's first Hispanic justice.
The U.S. Court of Appeals for the D.C. Circuit is considered the second-most important court in the country. One of its members, U.S. Judge David Tatel, a Clinton appointee, seems to be on everyone's short list as a possible Kerry nominee. Or Kerry could reach into Harvard for Law School professor Laurence Tribe, possibly the country's foremost expert on the Constitution and a key Democratic player in the court fights that led up to 2000's Bush vs. Gore.
Possible surprises from Kerry could include Eric Holder, who was U.S. attorney for Washington and deputy attorney general during the Clinton administration. If nominated and confirmed, Holder would be the third black justice to serve, behind the late Justice Thurgood Marshall and Thomas.
Former Solicitor General Seth Waxman makes everyone's list. New York Attorney General Eliot Spitzer has been an extremely effective champion for consumers. If Kerry tapped him for the high court it would come as a surprise, but not a shock. Kerry seems unlikely to pick a judge from the much-criticized and much-reversed 9th Circuit -- which is based in San Francisco but includes California, Oregon, Idaho, Nevada, Washington state, Alaska, Hawaii, Montana and Arizona. To do so would provoke Republican senators who might be spoiling for a confirmation fight. Bush and Kerry have both said during the current campaign they would not use a "litmus test" on abortion to determine nominees for the Supreme Court and the lower federal courts. But both candidates are realists.
If Bush picked a Supreme Court nominee who supported abortion rights for women it would outrage his core constituency, and he is extremely unlikely to do so. If Kerry picked a nominee who didn't support such rights, it would have a similar effect on his base.
Call it a hidden "litmus test."
Finally, no matter how hard they try, presidents have no power to influence a justice once he or she is safely on the high court.
Remember President George H.W. Bush's nomination of Justice David Souter in 1990?
So little was known about Souter that he was called the "stealth candidate," and Democrats were deeply suspicious that he was a radical conservative in moderate's clothing.
Instead, he turned out to be a champion of liberal thought on the Supreme Court, the complete antithesis of what the senior Bush believed him to be.
(Mike Kirkland is UPI's senior legal affairs correspondent. He has covered the Supreme Court and other parts of the legal community since 1993.)
