Posted online at ChicagoBusiness.com on December 21, 2000
In a complex and fractured opinion, the U.S. Supreme Court, as sharply and bitterly divided as the electorate, voted George W. Bush into the presidency. And President-elect Bush may soon have the privilege to make his mark on the court.
Chief Justice William Rehnquist is 76 and plagued with chronic back problems. Justice John Paul Stevens is 80. And both Justices Ruth Bader Ginsburg and Sandra Day O'Connor are cancer survivors.
Should Mr. Bush be called upon to replace even one or two of them, as he probably will, his appointments could profoundly reshape U.S. law. As its judgment in Bush v. Gore so eloquently demonstrates, the court is that closely divided on the most fundamental of issues.
A president's appointments to the Supreme Court are among his longest-lasting legacies. The 2000 presidential campaign highlighted the candidates' strong differences on lawful abortions, racially based affirmative action and government aid to religious schools. But additions to the court could also dramatically affect the business community.
Mr. Bush's conservatism has become the prevailing philosophy of the Texas judicial system. Under his leadership as governor, the Texas courts have been perceived as pro-business, but also anti-labor and anti-plaintiff.
During his term, Mr. Bush filled four vacancies on the Texas Supreme Court. Although he insisted on the campaign trail that he would appoint "strict constructionists" to the U.S. Supreme Court — those who would "strictly interpret the Constitution and not use the bench as a way to legislate" — his critics describe his Texas Supreme Court appointees as conservative judicial activists who hide behind the constructionist label.
While Mr. Bush was governor, the Texas Supreme Court he helped select ruled against workers exposed to asbestos. It let an insurance company off the hook when the company was sued to cover the medical expenses of a child suffering from a genetic disease only because her uncle was diagnosed with the disease during the policy's exclusion period. And it found in favor of a railway company that fired an employee who sought compensation after an on-the-job injury.
It seems inevitable that Mr. Bush will elevate a Texas-style conservative or two to the U.S. Supreme Court. Before the election, he spoke admiringly of Justices Scalia and Thomas, its farthest-right members. But now, with the country polarized and the Senate to be evenly split between the political parties, let's watch for Mr. Bush to curb his instincts and identify centrist candidates who can more easily be confirmed.
So, forget about darlings of the right wing like federal Appellate Judges J. Michael Luttig and J. Harris Wilkinson III, both of the Virginia-based 4th Circuit, which is known for its bold conservatism. They won't pass muster when Republicans no longer dominate the Senate.
Instead, Mr. Bush probably will select moderates who can be more readily accepted on both sides of the aisle. The next Supreme Court nominee might well be someone like Emilio M. Garza, a 53-year-old federal Appellate judge from the president-elect's home state and one of 31 million Hispanic-Americans, our fastest-growing minority and a group for whom representation on the court is long overdue. His heritage aside, Mr. Garza would be an outstanding choice: He's a former Marine and a tough law-and-order proponent who has earned the respect of lawyers and judges alike for his intellect and temperament.
Mr. Bush should stick to his principles. And he needs to pursue a solid, pro-business agenda. But let's hope that the results of our historic election empower the new president, a self-proclaimed "uniter," to shun rigid ideology and take advantage of a supreme opportunity to reach out and lead.
The stakes rarely have been higher.
Marc J. Lane ([email protected]) is a Chicago lawyer and financial planner and an adjunct professor of law at Northwestern University School of Law.
Copyright © 2000 by Crain Communications Inc.