Bush expected to nominate Harriet Miers to Supreme Court

Miers currently works as White House counsel

By Bill Mears
CNN Washington Bureau

WASHINGTON (CNN) -- President Bush is expected Monday to name White House counsel Harriet Miers as his choice to replace retiring Justice Sandra Day O'Connor.

Bush will announce his nominee at an Oval Office event at 8 a.m. ET.

If confirmed, Miers, 60, would join Ruth Bader Ginsburg as the second sitting female justice on the bench.

The announcement will come shortly before justices begin a new term with a new chief justice.

The term is expected to include rulings on several controversial cases, said Edward Lazarus, a Supreme Court legal analyst. (Case list)

"This is a situation where, from the very moment the justices start back up in October, they're going to be very divided," said Lazarus, who also authored "Closed Chambers," a book on the justices. "It's going to be a lot of friction inside the building."

Chief Justice John Roberts was sworn in Thursday, less than four hours after the Senate voted 78-22 to confirm him. He got to work quickly, putting in a full day at the court on Friday. (Related story)

The new chief has a lot of catching up to do, and fast: the court formally begins its work Monday, when oral arguments will be heard for the new term. (Related story)

Youngest justice

The 50-year-old Roberts will lead a bench on which seven of the current nine members are over 65. Only Clarence Thomas, at 57, approaches him in age.

When a new justice arrives there is "a certain amount of delicate politicking" among the justices, Lazarus said.

"Both sides are going to be feeling out Chief Justice Roberts to see what kinds of arguments appeal to him," he said. "What kind of person is he? Is he going to be someone who is going to be harder-edged, like a [Antonin] Scalia or a Thomas, or he is going to be the kind of very collegial person he's reputed to be?"

One thing that will help Roberts in the transition is that he clerked for then-Associate Justice William Rehnquist in 1980-81, and colleagues say the young lawyer learned valuable lessons in law and leadership from his mentor.

Rehnquist died September 3 after battling thyroid cancer for months. Two days later, Roberts was nominated to replace him.

Years ago, when preparing for cases, the two men would walk together on the court grounds or Capitol Hill and discuss the issues.

"It was apparent from the first day we were there that [Roberts] was an extraordinary intellect with a great work ethic, and he was going to do special things. And he has," said Dean Colson, who clerked for Rehnquist with Roberts.

Increasing caseload?

In confirmation hearings Roberts hinted at increasing the court's docket of cases, which had dropped by nearly half since Rehnquist took over in 1986.

The justices now hear about 80 appeals, and there have been complaints that the court ignores too many important issues.

Justice Sandra Day O'Connor announced her pending retirement last July. Roberts initially was picked for her seat, but Rehnquist's death changed the dynamic and prolonged the confirmation process.

O'Connor has said she will stay on until a replacement is named, making her role in the upcoming term unclear. Under court rules, a justice's vote does not count until a ruling is issued, a process than can take weeks or months. Officials have not said whether O'Connor will be on the bench Monday.

Many legal scholars question whether O'Connor would want to continue hearing cases if her replacement takes over before rulings are issued, thereby negating her vote.

The choice to replace O'Connor could be pivotal. She has been a key swing vote in the past and has, for example, voted to strike down abortion laws that failed to contain health exceptions. (Full story)

Most-watched case

Abortion tops the court's current docket. The most-watched case deals with a New Hampshire law requiring minors to get parental permission before undergoing the procedure unless a woman's life is in danger.

A federal appeals court ruled that exception was not broad enough, since it did not include a woman's health.

"This law does seem to be crafted to demand some kind of Supreme Court review," Lazarus said. "Because it really goes to this question of how much you have to protect the life versus the health of the mother. ... And it actually could be one of those cases that could turn on John Roberts' vote."

That case is to be heard in late November.

The court also will hear a longstanding dispute over legal protection for reproductive clinics against anti-abortion protesters. Next spring, the justices could confront another simmering issue: whether to continue to permit use of a late-term procedure critics call "partial-birth" abortion.

The justices in 2000 blocked states from enforcing a ban on such abortions, since those laws also did not provide for the health of the woman.

Assisted suicide case

On the second day, the court will hear arguments over whether an Oregon law allowing physician-assisted suicide is constitutional. The voter-approved referendum allows physicians to prescribe lethal doses of medicine to terminally ill patients who express a strong, clear desire to end their lives.

The Bush administration, normally a champion of states' rights, has said Oregon's law conflicts with the federal government's power over how drugs are prescribed and administered.

Doctors could be jailed or have their licenses revoked if the federal government prevails.

"The issue of physician-assisted suicide is tied into what President Bush calls 'the culture of life.' So this is a real emotional issue for them [conservatives]," Lazarus said. "And it's likely to be a very close ruling at the court, with Roberts again, perhaps, a key vote."

Other cases under consideration:

• A church-state battle concerning religious services that use a hallucinogenic tea, containing a banned drug.

• A free-speech dispute over whether universities opposed to the Pentagon's policy on homosexuals in uniform may ban military recruiters from campus.

• When and whether new DNA evidence can be used to help grant death row inmates new legal hearings to prove their innocence.

• Whether police can search homes for drugs when occupants disagree over consent.

  Of equal importance will be cases that may be added to the docket in the next few months. In addition to the "partial-birth" case, the justices could consider:

• Whether anti-racketeering laws can be used against tobacco companies accused of misleading Americans about the health dangers of smoking.

• Whether public school children can continue being led in the Pledge of Allegiance.

• Various terrorism-related cases dealing with whether Americans held by the military in the United States as "enemy combatants" deserve a chance to appeal in civilian courts; and the use of military tribunals to try suspected foreign terrorist suspects.

• The Supreme Court term begins the first Monday in October and effectively ends in late June or early July.