Bush eyes Leahy for Supreme Court appointment

By Shay Totten | Vermont Guardian

Posted April 1, 2007

WASHINGTON — Justice Patrick J. Leahy? That may be the title bestowed upon Vermont’s senior senator if Pres. George W. Bush takes the advice of top judicial advisors.

The Vermont Guardian has learned that U.S. Sen. Patrick Leahy, D-VT, has moved to the top of a list of potential Supreme Court nominees currently being reviewed by Pres. Bush.

Leahy is currently chairman of the Senate Judiciary Committee and one of the more powerful members of the Senate, and has taken on the Bush administration directly over issues related to secret spying on citizens, expansions of the USA PATRIOT Act, the concept of the unitary executive, and the firing of eight U.S. attorneys.

It is widely expected that Justice John Paul Stevens, who was appointed by Pres. Gerald Ford in 1975, will be the next Supreme Court justice to retire, and that retirement could come before Bush’s term ends. Stevens turns 87 later this month, which is prompting discussion that he may be ready for retirement after this term.

It would mark the third appointment to the Supreme Court for Bush. He tapped Judge John Roberts to be the chief justice of the court to replace William Rehnquist, and then appointed Judge Samuel Alito the court as an associate justice.

“We have let Sen. Leahy know that Pres. Bush is considering him at this time as part of a pre-qualification mode, if you will. If Justice Stevens retires before the end of his term, and with a Democratic-led Senate, there are limited choices available to us,” said a source close to the evaluation process.

It’s not the first time that Leahy’s name been on a list of potential Supreme Court justices. In fact, it is widely believed in Democratic circles that if a Democrat wins the White House in 2008 that Leahy would be a likely choice to fill any vacated seat on the high court’s bench. After Stevens, the next justice most likely to retire is Justice Anthony M. Kennedy, who was appointed by Pres. Ronald Reagan in 1986. Kennedy turned 70 last year.

Though appointed by Ford, Stevens is seen as the anchor of the court’s liberal wing. Meanwhile Kennedy is often the swing vote on the court.

White House sources noted it was an ironic turn of events, given that Leahy has often been criticized for holding up Bush’s judicial nominees and is poised to issue subpoenas for some top White House aides in the ongoing imbroglio regarding the firing of eight U.S. attorneys. But, Leahy also worked with the Bush administration post 9/11 to put in place the USA PATRIOT Act.

Current U.S. Attorney General, and longtime Bush lawyer, Alberto Gonzales, is also on the list, but his handling of the recent scandal has moved him down the ranks.

A White House source, who spoke to the Guardian on the condition of anonymity, said Leahy is an ideal candidate for the nation’s highest court.

“He is uniquely qualified because of his many years on the Senate Judiciary Committee, and his earlier years as a state prosecutor in Vermont,” said the source. “And, we think he would be an easy choice to have confirmed in the Senate.”

Then, jokingly, the source added, “We know that this is one nominee to the federal bench he wouldn’t want to slow down.”

Republicans have often criticized Leahy for thwarting some of Bush’s nominees to serve on the federal bench.

With Leahy out as chairman of the Judiciary Committee, the source acknowledged, it might make it easier for the Bush administration to get its judicial appointments through the Senate, and take the focus off the “nasty talk of subpoenas” and the possibility of impeachment.

Though Leahy has not openly supported Bush’s impeachment, 38 Vermont towns did vote to urge Congress to launch an impeachment investigation.

A Senate source, who is aware of the White House feeler, but is skeptical that it will be accepted, quipped, “Yeah, and I’ll bet Pat will ask Vice President Dick Cheney to swear him in, for old times’ sake.”

During a photo session on the Senate floor, Leahy got into an argument about Cheney's ties to Halliburton and Pres. Bush's judicial nominees. Cheney turned and gave Leahy some blunt advice: “F*** yourself.”

While that conflagration epitomizes the feelings of the administration toward Vermont, the effort to “get” Vermont has been a long-standing goal of Bush.

In fact, Bush officials have had their retributive sights on Vermont ever since Sen. Jim Jeffords declared his independence in 2001 and left the Republican party, effectively turning the keys of the Senate over to the Democrats. Democratic control was short-lived, but the Bush administration is still smarting by the setback it forced on key policy efforts.

Shortly after, Vermont’s former Gov. Howard Dean became a leading anti-war voice and critic of the administration, before his campaign fell apart in Iowa.

That, along with a fomenting impeachment drive emanating from the Green Mountains, led the Bush administration last year to label Vermont as “rogue state.”

The overtures to Leahy breaks from this tradition, and may largely be due to the fact that the GOP sees a future for other top Republicans in Vermont.

Leahy’s appointment to the Supreme Court would likely set off a chain of political events in Vermont rivaled only by the retirement of U.S. Sen. Jim Jeffords.

The White House source also told the Guardian that Leahy’s potential appointment was discussed with Gov. Jim Douglas. The discussion occurred with a top Bush aide during Douglas’ recent stay in the Lincoln Bedroom at the White House.

“We obviously reached out to Gov. Douglas, as he would either need to appoint someone to Leahy’s seat, or if a special election were held he would likely want to run for the seat himself,” the White House source told the Guardian.

“He was our choice to run against that socialist Sanders, but we couldn’t get him to agree to that, but we’d like to see the governor join us in Washington,” said the source.

In 1992, Douglas lost the U.S. Senate seat to Leahy by 31,000 votes. It is the only loss Douglas has suffered as a politician.

GOP sources said there is some talk that Douglas would resign as governor, placing Lt. Gov. Brian Dubie into the role of governor. Then, Dubie could appoint Douglas to the seat, or Douglas could run in a special election for the seat.

A Douglas aide, however, recently told the Guardian that it was a near guarantee that the governor would run for reelection in 2008.

In the event that does happen, Douglas would have a number of people to consider for the post, including Jack McMullen, who ran against Leahy in 2004 and lost, or Rich Tarrant, who lost to Bernie Sanders in last year’s U.S. Senate race, or Martha Rainville, the former adjutant general of the Vermont National Guard who lost to Peter Welch for the U.S. House seat.

“The governor has a lot of options, but this is all still very early in the process and he’s taking his time to think things through,” said one source close to the governor.

GOP insiders chuckle at the notion of Tarrant and Sanders serving together in the Senate.

“Well, if they can walk arm in arm at the Ritz-Carlton in Florida, they can probably get along at the Ritz-Carlton in Washington,” said one GOP insider who asked to remain anonymous.