Handicapping the Supremes

The Bush administration wants to shield its $700 billion bailout plan from the scrutiny of a court.

Good luck with that.

"Courts don't like Congress to say you don't have the power to review what we are doing. Courts have a big allergy to that," Linda Greenhouse, who covered the Supreme Court for three decades for the New York Times, told an audience at the New School on Tuesday night. "So I could see a challenge, and it could be a challenge from both sides of the court."

The discussion was led by Bob Kerrey, the president of the New School and onetime presidential candidate, and the conversation turned to how the court might change under a new administration.

Senator Barack Obama has not said a word about his philosophy on judicial appointments, while Senator John McCain has said that he will not appoint justices who "legislate" from the bench --- code for his allegiance to the Federalist Society, a group determined to make sure that only "strict constructionists" of the Constitution make it onto the federal bench.

Kerrey was worried about what would happen if two Samuel Alitos were appointed to the court by the next president. Justices David Souter and John Paul Stevens are predicted to retire soon after the next president is sworn into office.

"Even if you get one," Greenhouse noted, the balance will tip. "These things are hanging by a thread."

And sometimes, not even. For instance, Alito recused himself from hearing the appeal of punitive damages in the Exxon Valdez case, leaving the lower court's decision in tact.

"Judges should get rid of their stock, and they know that," she said. "They were embarrassed by it this term."

The more important issue, Greenhouse said, is compensation. At a dinner, she said, someone mentioned hat a fifth-year associate at the law firm of Skadden, Arps, Slate, Meagher & Flom, with a salary of $400,000, makes more than President Bush.

And studies have suggested the low compensation leads the bench to swing more toward ideologues. "There's something wrong with the whole system, she said.

Kerrey, for one, thinks Congress will press the nominees harder on their judicial philosophies, rather than take at face value a comment like "I am just an umpire, calling balls and strikes," made during the Senate testimony of Chief Justice John Roberts.

This being Greenwich Village, the audience was obsessed with the 2000 election and Bush v. Gore. Greenhouse said she did not think the decision was "political," but neither Kerrey nor the crowd was buying it.

"Hey, I'm not here to defend Bush v. Gore," she said. "I told a million readers the court would never get involved in the case."

by Karen Donovan

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