|
WASHINGTON (AP) President Bush's next pick for the Supreme Court, not his choice of Judge John Roberts as chief justice, could be the nomination that gives conservatives a firm grip on the court.
If he chooses a hardline judicial conservative to replace retiring Justice Sandra Day O'Connor, Bush could set off a feverish partisan battle in the Senate. But the president's weakening political standing could compel him to nominate a more moderate conservative less likely to draw fire from liberal opponents.
Bush isn't one to shy away from a fight. But the question is: How big a fight does he want? Especially at a time when he is spending lots of energy on helping the hurricane victims from New Orleans and the Gulf Coast.
When Chief Justice William H. Rehnquist died of cancer Saturday, Bush decided to renominate John Roberts as chief justice instead of as O'Connor's replacement.
Similar in their judicial philosophy, a Roberts-for-Rehnquist vote on the court is essentially an even trade on a court with a narrow conservative majority that often decided major cases by a 5-4 vote. The stakes are higher when it comes to replacing O'Connor, a tiebreaker on key court rulings who swung between the court's conservative and liberal blocs.
The tendency to pigeonhole nominees according to their suspected political ideology is inappropriate, said Leonard Leo, executive vice president of the conservative Federalist Society.
"Judicial selection is not about some optimal `ideological balance' on the court," he says. "The chairs at the bench at the Supreme Court are not marked `liberal,' `moderate' and `conservative.' The job is to find the best qualified individual -- man, woman, or minority -- who understands the proper judicial role."
But there is great national interest in the ideological leanings of prospective candidates.
Bush might be emboldened to name the strongest qualified judicial conservative he can find -- never mind their gender or ethnicity.
That could mean picking a federal appellate judge like J. Michael Luttig, J. Harvie Wilkinson, Janice Rogers Brown, Samuel Alito, Michael McConnell or Edith Jones.
"If Bush is willing to go to the mat for somebody, the odds are good that, at the end of the day, no matter how bloody the battle has been, he can get that person confirmed," said Brad Berenson, a former lawyer in the Bush White House.
Democrats are hoping Bush will not want a bitter fight right now and might pick someone more moderate. That theory has restarted rumors over Attorney General Alberto Gonzales' chances of being Bush's next pick. Gonzales would be the first Hispanic named to the court.
Gonzales' judicial views are not well-known, but conservatives have said they would staunchly oppose him, partly over questions about his stances on affirmative action and abortion. Nominating Gonzales could threaten Bush's support from his political base.
A Gonzales nomination could be a shrewd political move because Hispanics, a fast-growing voting bloc, would be likely to cheer his nomination. Gonzales is on a list of contenders that the Hispanic Bar Association hopes Bush will consider. Another possibility is Miguel Estrada, a conservative Hispanic lawyer whose nomination to the U.S. Court of Appeals for the District of Columbia Circuit was thwarted by Senate Democrats.
Republican and Democratic strategists agree Bush is under pressure to follow his nomination of Roberts with someone other than a white male.
One option is Larry Thompson, who was the federal government's highest ranking black law enforcement officials when he was deputy attorney general during Bush's first term.
Bush reportedly likes and trusts Thompson, who is also is a longtime friend of Justice Clarence Thomas, one of Bush's favorite members of the court.
The retirement of O'Connor leaves Justice Ruth Bader Ginsburg as the sole woman on the high court.
If Bush wanted to keep two females on the court, he might turn to Edith Jones or Edith "Joy" Clement, both on the federal appellate bench in New Orleans. Jones was a runner-up when Bush's father, former President George H.W. Bush, nominated Justice David Souter to the court. Clement was interviewed by the current President Bush before he chose Roberts.
Despite suggestions that Bush could help buoy spirits in the storm-ravaged area by naming a New Orleans jurist, court watchers doubt Bush would use a big decision like a Supreme Court nomination for a small-time political gain.
|