Adding 1 Involves a Lot of Variables

As President Bush weighs a successor for retiring Supreme Court Justice Sandra Day O’Connor, he will face pressure to name a Latino, a woman, an African American or someone who would help overturn the landmark case that legalized abortion.

But White House allies and advisors said Friday that the toughest choice facing Bush was whether to pick a nominee who would probably coast to Senate confirmation -- such as his longtime friend, Atty. Gen. Alberto R. Gonzales -- or one who would please the conservative Republican base but also spark a protracted partisan battle that could stall other priorities.

That quandary came into focus with O’Connor’s surprise announcement, which all but assured White House allies that Bush would get the chance to make at least two Supreme Court appointments. The second would replace ailing Chief Justice William H. Rehnquist, who until Friday had been considered the sure bet to create the first opening.

Now, White House advisors are trying to draw lessons from the experience of President Reagan, who took the easy route first in winning confirmation for Justice Antonin Scalia but then paid a heavy price when a more controversial nominee, Robert H. Bork, was defeated.

“It’s a fairly sophisticated choice to be facing,” said C. Boyden Gray, White House counsel under President George H.W. Bush and now a strategist on court nominees for the current administration. Bush “really does want to appoint Gonzales. So does he appoint Gonzales now, or does he wait for the second opening? Gonzales would be the first Hispanic and would be easier to confirm” than other contenders considered to be more conservative.

Further complicating matters for the White House, said Gray and other administration allies, was the fact that O’Connor made her announcement on the eve of the president’s trip to Scotland for the summit of the Group of 8 industrial nations. That means Bush will not announce his nominee until at least the end of next week, giving Democrats and liberal interest groups more time to frame the debate and talk about potential picks.

“It’s going to put pressure on people like us on the outside to get on TV and fill the airwaves,” Gray said.

For Bush, the O’Connor announcement opened the door to one of the most highly anticipated decisions of his presidency. His approach to a Supreme Court vacancy has been the source of speculation among activists on all sides of major issues since he said during his 2000 campaign that his ideal court picks would mirror conservative heroes Scalia and Justice Clarence Thomas.

But his course of action is unpredictable. Bush won the White House by shoring up his party’s conservative base, but he is also fiercely loyal to friends such as Gonzales and eager to expand the Republican base by drawing more Latino voters.

Religious conservatives signaled Friday that they would not be satisfied with Gonzales or any nominee viewed as potentially soft on overturning the Roe vs. Wade abortion decision and on other social issues. O’Connor’s departure is thought to leave a narrow court majority supporting a right to abortion, and leading conservative activists relished the prospect of moving one vote closer to overturning the 1973 decision that legalized the procedure.

Richard Land of the Southern Baptist Convention noted that O’Connor had been part of the majority in several cases that had “dismayed social conservatives,” including several abortion decisions and this week’s ruling limiting the display of the Ten Commandments in public buildings. Land said Bush’s legacy as a president would probably turn on whether he picked a sufficiently conservative nominee.

Similar thoughts came from other evangelical leaders, such as Tony Perkins, president of the Family Research Council, and Gary Bauer, president of American Values. Bauer cautioned the White House to avoid the temptation to “pander to the whims of political correctness.”

Gonzales has been a particular concern to conservatives because of moderate stances he took on abortion rights and affirmative action while a justice on the Texas Supreme Court and as White House counsel. Some conservatives said they were counting on Bush to hold off on appointing his friend.

“I know he respects [Gonzales], and he could come up later,” said the Rev. Louis P. Sheldon, chairman of the Traditional Values Coalition. “But I think out of the chute, the president wants someone who will have 100% support from the grass roots.”

But as Bush considers various nominees, there are reasons he may bypass the most conservative names and focus instead on Gonzales or other candidates considered more moderate.

The president may want to avoid a bitter confirmation battle that could hamper the rest of his agenda in Congress by tying up the Senate and inflaming partisan passions. Already, Bush’s signature domestic proposal -- restructuring Social Security -- is in jeopardy, and a confirmation vote on John R. Bolton, his nominee to be U.N. ambassador, has been stalled by Senate Democrats.

Recent polls have put Bush’s popularity below 50% amid growing concerns about the war in Iraq, and a further erosion may scare Republican lawmakers from following his lead on a range of issues.

Moreover, the fact that the president will be choosing a successor to O’Connor, a moderate, “makes it easier for Bush to appoint someone who is more of a moderate,” said UC Berkeley law professor John Yoo, a former Justice Department official.

In fact, Bush may have signaled this week that pleasing social conservatives by pushing to overturn Roe vs. Wade was not necessarily weighing on his mind.

“Abortion ought to be illegal with the exception of rape, incest or life of the mother,” he said on Danish television Wednesday. “But look, I’m a realist as well. I mean, this is an issue that has polarized the American political society. And in order to get good policy in place that protects the life of a child, we’re going to have to change hearts.”

O’Connor’s retirement raises the prospect that Bush will nominate someone who has a diverse background, but not necessarily a woman, said some who watch the court. “The fact that it is Justice O’Connor may marginally hurt the chances of the white males in the pool and help the chances of those who are perceived to be more readily confirmable,” said Bradford Berenson, a former White House lawyer.

Bush has never hidden his affection for his longtime aide Gonzales, a son of migrant workers. Bush has placed him in a series of increasingly important jobs since Gonzales became Bush’s legal advisor in Texas in the 1990s.

If chosen for the high court, Gonzales is considered likely to be approved. Not only did he already win confirmation as attorney general, but also lawmakers from both parties would be wary of opposing him for fear of offending Latino voters.

“There is no doubt in my mind that Al Gonzales will be nominated for the Supreme Court. The only question is whether it will be for the first or the second opening,” said Gonzales’ longtime acquaintance Roland Garcia, a Houston lawyer who was a law partner of White House Counsel Harriet Miers.

Miers, a Texas lawyer who has known Gonzales and Bush for years, is helping vet potential nominees. Gonzales huddled Friday with Miers, Bush, Vice President Dick Cheney, White House political strategist Karl Rove and several others to discuss O’Connor’s resignation. The attorney general has made a point recently of opening dialogue with conservative activists, leading some to conclude he was in essence interviewing for the job.

Gonzales was unavailable to comment Friday, but issued a written statement calling O’Connor a “role model for a generation of young lawyers.”

Should Bush choose to avoid a battle with his own base over Gonzales and opt for a candidate thought to be more reliably conservative, there are many contenders believed to be on his short list.

Another possible Latino nominee is Judge Emilio M. Garza, 57, who sits on the 5th U.S. Circuit Court of Appeals in New Orleans. Garza has written opinions that are skeptical of the right to abortion set out in Roe vs. Wade.

If the White House concludes that O’Connor’s departure means Bush must choose another woman, the possibilities include Edith H. Jones, who sits with Garza on the 5th Circuit; Edith Brown Clement, who also sits on that court; and former California Supreme Court Justice Janice Rogers Brown, who was recently confirmed as a judge on the federal appeals court in Washington, D.C.

Jones and Brown have endeared themselves to the GOP’s conservative wing. Jones has written opinions openly questioning the rationale in Roe vs. Wade and suggesting that it should be reexamined based on research raising new questions about the effect of abortions on women’s health.

Brown has a long record as a conservative-minded state court jurist on issues including property rights, affirmative action and government power. Born into a sharecropper’s family in Alabama, she has the sort of personal story that Bush appears to admire in his Cabinet and judicial picks. She would also be the first African American woman on the court.

Clement was named to the federal bench by the first President Bush and was elevated to the appellate court in 2001.

Should Bush decide to forgo considerations of diversity and focus solely on finding a conservative, he may tap Judge J. Michael Luttig, an appellate judge in Virginia; Judge Samuel A. Alito of the U.S. Court of Appeals in Philadelphia, whose conservative voice has invited comparisons to Scalia; or Judge John G. Roberts Jr., a cautious Bush appointee to the U.S. Court of Appeals in Washington, D.C.

Candidates whose confirmations would probably be relatively less confrontational include J. Harvie Wilkinson III, a scholarly veteran judge on the U.S. Court of Appeals in Richmond, Va., and Michael W. McConnell, a former University of Chicago law professor who sits on the U.S. Court of Appeals in Denver and has drawn support from both liberal and conservative academics.

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VACANCY ON THE SUPREME COURT

10 potential successors

Samuel A. Alito Jr., 55

Son of an Italian immigrant has been likened to Justice Antonin Scalia because of his legal philosophy. A staunch conservative on the generally liberal U.S. 3rd Circuit Court of Appeals. Has written conservative dissents in abortion, gun control and 1st Amendment cases.

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Janice Rogers Brown, 56

Brown was confirmed in June to the U.S. Court of Appeals for the District of Columbia after a nearly two-year political battle focused on her conservative judicial philosophy. She took some liberal positions as a California Supreme Court justice.

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Emilio Garza, 58

Appointed a district judge in 1988, Garza was promoted to the U.S. 5th Circuit Court of Appeals in 1991 by George H.W. Bush. A conservative Catholic, he would be the court’s first Latino. He has suggested that he would vote to overturn the constitutional protection for abortion rights.

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Alberto R. Gonzales, 49

U.S. attorney general drew fire from Democrats during confirmation hearings. Some conservatives view the longtime Bush

advisor as too moderate on issues such as abortion rights and affirmative action. He is the son of Mexican American migrant farm-workers.

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Edith Hollan Jones, 55

A smart, hard-nosed conservative, Jones has sat on the U.S. 5th Circuit Court of Appeals since 1985. She has a long track record on a wide range of issues, including abortion. She has characterized the Roe vs. Wade decision as a “raw exercise in judicial power.”

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J. Michael Luttig, 51

Has been on U.S. 4th Circuit Court of Appeals in Virginia since 1991. Clerked for Justice Antonin Scalia on a federal appeals court, and for Chief Justice Warren Burger in 1983-84. Has a conservate reputation, but some see him as more moderate than others on Bush’s list.

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Michael W. McConnell, 50

Judge on the U.S. 10th Circuit Court of Appeals since 2002 has been criticized from the right and the left. Liberals suspect he opposes abortion, though he has said the issue is “completely settled.” Opposed the Clinton impeachment and the 2000 presidential election ruling.

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John G. Roberts Jr., 50

A judge with the D.C. Circuit Court since 2003, he was a law clerk for Chief Justice William Rehnquist and served under the first President Bush. A sought-after private litigator in Supreme Court cases, he has generally avoided weighing in on disputed social issues.

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J. Harvie Wilkinson III, 60

Wilkinson has served in the armed forces, taught law and is a former editorial page editor of the Norfolk Virginian-Pilot. He has been consistently conservative since he was nominated to the U.S. 4th Circuit Court of Appeals by President Reagan in 1984.

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Edith Brown Clement, 57

Clement was nominated by President George H.W. Bush to a seat on the U.S. District Court for the Eastern District of Louisiana in 1991. She served for 10 years, including two as chief judge, until President George W. Bush elevated her to the U.S. 5th Circuit Court of Appeals.

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Sources: Associated Press, Bloomberg News, Federal Judicial Center. Graphics reporting by Tom Reinken and Julie Sheer