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On Deep Background Only!


Friday, Apr. 26, 2002

Every spring two things happen in our nation's capitol: the cherry blossoms bloom, and the Court watchers look for signs of who is going to retire from the Supreme Court. This year was no exception, and I happened to be in the Capital City for both. The guessing game on the High Court vacancies and potential selections caught my attention.

More about that in a later column. But having steeped myself for many weeks in Bob Woodward's journalism, I thought I'd share what I'd learned about the Supreme Court Woodward-style - all my sources will remain on deep background.

While I didn't get reports on all the Justices, I did get a few insights. All from highly reliable sources, I assure you.

On Chief Justice William Rehnquist

Chief Justice Rehnquist, who has a bad back, is doing fine. He's still cranking out his astounding workload, not to mention giving speeches, and doing his own private research studies. Another book may be in the works.

One Rehnquist source visited with the Chief when he spoke recently at Duke Law School. They chatted during a reception at a table with cookies on it, but the Chief was watching his waistline, and only getting a refill of coffee. My source reported that while Rehnquist sounded fine, and is obviously still "an awesome legal mind," the Chief appears less than robust, causing this source to wonder if retirement could be very far away.

Another well-placed source revealed that while Rehnquist had been dating a woman who sits on the federal bench, contrary to earlier rumors, there is no budding romance. Rather, they seemed to be the best of friends, and the Chief was not seeing her as much as earlier. This source, who knew Rehnquist's late wife, asked me if I was aware that she had once worked at the CIA. I hadn't been, and I'm not sure at what he was hinting.

When I asked another source if he was still playing poker with the Chief, he said he wasn't. He didn't know if Rehnquist was still playing because he'd been thrown out of the game for talking too much. I didn't press for details.

All of my Rehnquist sources think the seventy-seven-year-old Chief Justice will resign after the 2002 elections, regardless of who wins the Senate. And he'll do so well before the end of Bush's first term, so that the vacancy is not held over until the 2004 presidential election. In short, we'll have a new Chief Justice before the next presidential election.

On Justices Clarence Thomas and Stephen Breyer

Two sophisticated Court watchers, each of a different political and philosophical persuasion, told me that they had been deeply impressed with Thomas's slowly revealed (or developed) judicial acumen, and pleasantly surprised by Breyer's flashes of ardor. Both Justices are developing into formidable forces in constitutional jurisprudence, both with passion and brilliance.

As one source said (and he's argued many times before the High Court), "I thought Thomas didn't ask questions during oral argument because he didn't want to embarrass himself. Now I'm convinced he's way ahead of the arguments and he finds them boring and a waste." This distinguished member of the Supreme Court bar told me while he disagreed with Thomas's constitutional positions, he had a new-found respect for his intellect. Coming from this source (who could nicely fill a chair on that bench), this comment was both unexpected and the highest compliment for Thomas.

My other source, who knew Justice Breyer long before he arrived on the Supreme Court and sees him socially, tells me the Justice is anything but passionless. Rather, he believes Breyer has been getting his bearings, which he has had for several years now, and he expects Breyer to soar.

I was picking up strange static in these conversations - including suggestions that on some issues Thomas is moving to the center, while on others Breyer is moving to the right. Both Justices have their best years ahead, so it will be interesting to watch.

On Justices Ruth Bader Ginsburg and Sandra Day O'Connor

Unfortunately, cancer is no stranger at the Supreme Court. In 1988 Justice Sandra Day O'Connor was treated for breast cancer, and in 1999, Justice Ruth Bader Ginsburg was treated for colon cancer.

Justice O'Connor has made an observation about her illness that I found most poignant. Some time ago, The Washington Post reported her speech to the National Coalition for Cancer Survivorship, where she complained about the media attention focussed on her health: "How does she look? When is she going to step down and give the president another vacancy on the court? She looks pale to me; I don't give her six months." Her reaction: "This was awful."

Thinking about that made me refrain from asking whether O'Connor appeared to be in good health when I found myself in a conversation with a Washington lawyer who was telling me about a recent evening with several of the Justices at a social event. He mentioned that he happened to find himself in a conversation with both Ginsburg and O'Connor, and he volunteered that both looked wonderful given what they've been through. While Justice Ginsburg is frail, that has always been the case to some extent; and Justice O'Connor is the picture of health.

Which got us to the serious stuff, a bit of gossip. According to a close friend of O'Connor's, she put out the statement last year that she was not considering retiring in order to stop the speculation. Her position, according to this source, is that she'd love to be the first woman to be Chief Justice. If that doesn't happen, then the Court's swing vote will probably leave the Court - as soon as she is sure she can be replaced by someone who will hold the Court to the center on the hot button issues.

While it appears that, in fact, no one is leaving the Court until after 2002, there is still much talk about who is on Bush's short list at the White House to fill the first vacancy. The candidate who has been most directly at the center of public speculation, White House counsel Alberto Gonzales, is privately considered a non-starter by some of the more astute Court watchers. He's not ready for the Court, they say, noting that confirmation would not be easy merely because he would be the first Hispanic nominated for the High Court.

Gonzales sat on the Supreme Court of Texas before coming to Washington. And, perhaps ironically, this fact alone is a strike against him. There is a definite feeling among those who think about these matters that too many "judges" are being sent to the U.S. Supreme Court. As a result, the Court has lost its broad understanding of not only the body politic, but the real world.

This opinion came up in several of my "off the record" conversations. During one such conversation, with one of the Senators on the Senate Judiciary Committee, I decided to raise my own concern. Having his ear, I waxed long on how it was time for another member of the U. S. House of Representatives or the U. S. Senate to be placed on the high bench.

I've written on the subject in a prior column, as I told him. From the founding of our Republic until the 1971 retirement of Justice Black, it had been the norm to have a former member of Congress on the Court - establishing a presence that helps the Court understand its constitutional co-equal branches, I protested.

Then, I suggested to this Senator, who has some influence with the White House, that retiring Senator Fred Thompson of Tennessee would be a choice that all Republican would applaud and many Democrats could live with. He is in his early 60s, and has distinguished himself in the Senate, and he surely would on the Court.

"How about Orrin Hatch?" the Senator countered.

I bit my lip, Clintonesquely, for Hatch would not be on any list of mine. Senator Hatch is only a few degrees away from the darling of the hard-right zealots who would love to see former Senator, and currently Attorney General, John Ashcroft on the Court.

"Do you think he could get confirmed?" I asked.

"Well, I don't know. But I do know I'd give it my best shot because I'd love to see Orrin on the Court."

"Get him out of the Senate. He's driving me crazy."

Well, Orrin Hatch has about the same chance of getting through the Senate as John Ashcroft. It will never happen. But Fred Thompson would be terrific, so I've done - and shall continue to do - my best to spread that word.

Deep Throat's Friend On The Court

As I mentioned, I was listening to the buzz about the Supreme Court while in Washington doing my Deep Throat sleuthing. One friend who was aware of my undertaking, but not of Throat's identity, suggested jokingly that I call Deep Throat to see if Bush is going to make Justice Antonin Scalia Chief Justice, when Rehnquist leaves.

He was still chuckling when I responded. "That's not a bad idea. He probably knows."

"Are you serious?"

"Absolutely," I answered. For in fact Deep Throat has known "Nino" for over three decades, and I suspect Justice Scalia will be as surprised as many others to learn of the secret life of his old friend. But, as I said earlier, more on that later.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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