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Attorney Edward Lazarus on Bush and the Supreme Court March 21, 2001 More chat transcripts ------------ Edward Lazarus - Medical Marijuana Edward Lazarus - Bush/Supreme Court Anthony Sebok - IBM/Holocaust Julie Hilden - KKK/Freedom of Speech Charles Compton - Microsoft John Dean - Rich Pardon Kevin Grierson - Napster Marci Hamilton - Napster Robert Precht - Embassy Bombings Yonah Alexander - Lockerbie Jonathan Nelson - Embassy Bombings John Dean - Bush Transition Victor Williams - Elections/Supreme Court Edward Lazarus - Elections/Supreme Court Michael Dorf - Elections/Recount John Dean - Elections/Watergate Catherine Christophillis - Drugs/Pregnancy Jennifer Granick - Drugs/Pregnancy Kevin Grierson - Napster Trial Ed Masry - Erin Brockovich Piere Thomas - Wen Ho Lee Lauren Gelman - Internet/Speech Anthony Sebok - Firestone Tires Neal Katyal - Clinton Sanford Levinson - Election Ruti Teitel - Ousted Leaders David Thibodeau - Waco Michael Dorf - Supreme Court Byron Sage - Waco David Linder - Scopes trial Marci Hamilton - Supreme Court Thomas Jurgensen - Human Genome Jeffrey Rosen - Privacy issues Solomon Wisenberg - Death penalty Ted Conover - Sing Sing prison Matthew Glavin - Clinton disbarment Anthony Sebok - Tobacco litigation Douglas Lichtman - Music copyright David Martin - Elian case

Edward Lazarus, a former U.S. Supreme Court clerk and the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court," joined Law Chat via telephone from Los Angeles to discuss possible Bush appointments to the court. Law Chat is produced with FindLaw. CNN.com provided a typist for Lazarus. The following is an edited transcript of the chat.

CNN Host: Welcome to CNN.com Law chat, Edward Lazarus.

Edward Lazarus: Thank you very much.

CNN Host: During his term, President Bush will likely have a chance to appoint one or more Supreme Court justice. What kinds of criteria do you suppose he is using to construct his list of potential justices?

Edward Lazarus: I think that some of the criteria he will use are common to every president. He will want someone of high intellect and deeply experienced. At the same time, judging by the people Bush has put in charge of judicial selection and the statements he made during the campaign, the president will be looking for nominees with a conservative judicial philosophy along the lines of Justices Antonin Scalia and Clarence Thomas.

Question from Chat Room: What are the chances that Bush will sell out and appoint non-conservative judges?

Edward Lazarus: I think that it's very unlikely Bush will voluntarily choose a moderate. The real question facing President Bush will be how much political capital he wants to expend to get a known conservative onto the court.

With the close split in the Senate, it will be very difficult for him to push through an ideological candidate. And thus he may choose a moderate simply because of practicality.

The same considerations would not hold as strongly for lower federal court appointments. And I think we will see a strong conservative tinge in those appointments.

Question from Chat Room: Mr. Lazarus, what names are being mentioned as possible nominees for a federal bench.

Edward Lazarus: At this point most of the people mentioned for potential supreme court openings are current court of appeals judges. For political reasons, I think it's likely that Bush will choose an Hispanic as his first nominee to the court. And one possibility there is Judge Amelio Garza. He sits in Texas.

CNN Host: Have any justices offered any clues or hints that they will retire during a Bush administration?

Edward Lazarus: The word around Washington right now is that Justice Sandra Day O'Connor has signaled to friends that she is seriously considering retirement. Also, Chief Justice William Rehnquist has for many years privately hinted at retirement, and he is approaching 80 years old.

Question from Chat Room: Mr. Lazarus, why does the U.S. president end up appointing Supreme Court members?

Edward Lazarus: The Constitution provides that the president will name federal judges with the advice and consent of the Senate. Thus, it is not the president's power alone to make the appointment. The Senate also has an important role.

Question from Chat Room: Can we expect Scalia to be the next chief justice?

Edward Lazarus: Scalia's name has certainly surfaced as a likely candidate. I am doubtful that he will be named if Chief Justice Rehnquist retires, because he is simply too controversial to make it through an evenly divided Senate.

It is important for people to remember that the chief justice does not have to be chosen from among the current justices. President Eisenhower selected Earl Warren, who was not on the court. Similarly, Richard Nixon chose Warren Burger who was a court of appeals judge.

CNN Host: Is there anyone Bush would likely nominate that would result in controversial or contentious confirmation hearings such as with John Ashcroft?

Edward Lazarus: I think many of Bush's potential nominees could trigger an Ashcroft-type battle. One name frequently mentioned is Michael Luttig of the 4th U.S. Circuit Court of Appeals. He certainly would trigger an all-out fight by the Democrats. Other candidates would meet with the same response.

Question from Chat Room: Would a filibuster be enough to block a nomination?

Edward Lazarus: Yes, if the Democrats mounted a filibuster and it held, they could stop a nomination. There are a few scholars who said in the wake of Bush v. Gore that the Senate would not confirm any Supreme Court nominees and that the court might have to operate at less than full strength. I am doubtful that will happen, but it's not impossible.

Question from Chat Room: Are there any conservatives that would not trigger verbal abuse and character assassinations by Democrats? No, this really is a real question. Honest.

Edward Lazarus: I think an honest answer to that honest question is that any highly ideological candidate (someone in the vein of Robert Bork) is likely to face the same kind of distortion of the facts that conservatives used to stop liberal judicial appointees during the Clinton years. This tit for tat and disregard for truth has become a sad but seemingly inevitable part of our modern political culture.

Question from Chat Room: Do you think Bush might re-nominate Bork?

Edward Lazarus: I don't believe Bush would re-nominate Bork. I think he would be disqualified because of age at this point. I think the Bush people will be looking toward a new generation of conservative legal leaders.

Question from Chat Room: And if the Senate and the president do not agree who will override?

Edward Lazarus: There is no provision for overcoming a stalemate between the president and Senate, and as a result, as I mentioned earlier, a vacancy at the court could remain unfilled for a while.

Question from Chat Room: What about Judge Royce Lamberth from Texas who's on the federal district court in D.C.?

Edward Lazarus: Judge Lamberth is not one of the usual suspects but he has handled a number of very high profile cases, and made a name for himself as a thorn in the side of the Clinton administration. I would be very surprised if he were Bush's first or second choice for the Supreme Court, but if Bush were to get an even greater number of appointments, he might become more of a possibility.

CNN Host: Abortion is once again a hot button. How might Bush's choices for the Supreme Court affect the abortion issue?

Edward Lazarus: The answer to that question depends on which justices retire. If either Justice O'Connor or Justice Stephens retires, an anti-Roe v. Wade replacement could have a profound affect on abortion rights.

Question from Chat Room: What are the chances of an academic being appointed as opposed to an acting judge?

Edward Lazarus: It is certainly possible for a leading academic, such as Michael McConnell at the University of Utah, to become a contender. Personally, I think the chances for a professor are slightly diminished by the fact that the current court is very long on theoretical justices and rather short on justices with either political or hands-on legal experience. But I would by no means rule out a top legal scholar.

Question from Chat Room: Mr. Lazarus, your book, "Closed Chambers," is fascinating. Why do you think the Supreme Court chose to forbid similar books that describe the inner workings of the court from being written in the future?

Edward Lazarus: The Supreme Court justices unfortunately believe that the public has no right to know anything about the process by which they reach their decisions. That cannot be right.

The process of Supreme Court decision-making is supposed to elevate the court's decisions above the trade off of everyday politics. And thus if we cannot evaluate how they reach their decisions, we cannot make an informed judgment about how well the justices are doing their jobs. Perhaps the court does not want such an evaluation but that is regrettable.

Question from Chat Room: I loved "Closed Chambers," and as a clerk at a state appellate court I could really relate to many of your experiences. My question is whether you have been contacted by any former clerks or judges who have reacted negatively to your decision to make public so many of your private experiences at the court.

Edward Lazarus: I have received both high praise and intense criticism from former clerks and judges. It is not an easy question and I welcome the debate, though I certainly feel strongly that an open discussion of how our court system works is crucial to the public debate.

CNN Host: Do you have any final thoughts to share with us today?

Edward Lazarus: The court handed down two more closely divided decisions today. Which only reinforced that one of the most important questions in American life today is whether the swing vote on the court, Sandra Day O'Connor, is going to retire, and if she does, who will replace her?

CNN Host: Thank you for joining us today, Edward Lazarus.

Edward Lazarus: It was my pleasure and I hope to chat again with you very soon.