Bush Caught in GOP Riptide Over High Court

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Times Staff Writer

As he weighs the momentous choice about whom to nominate to the Supreme Court, President Bush is facing the toughest test yet of his ability to hold together the diverse -- and often fractious -- political coalition that twice elected him to the White House.

Bush has marched through his presidency championing causes held dear by one Republican Party faction or another -- lawsuit limits sought by business, antiabortion measures pushed by religious conservatives, tax cuts favored by free-market advocates, immigration law changes appealing to Latinos -- but the court seat opened by Justice Sandra Day O’Connor’s retirement is a prize valued by all parts of the party. And their priorities do not always coincide.

It may be easier for Bush to navigate his party’s crosscurrents if ailing Chief Justice William H. Rehnquist also retires, as many political observers expect. That would give Bush two opportunities to satisfy the GOP’s diverse interests in reshaping the Supreme Court. But Bush still will be buffeted by an unusually powerful confluence of competing political pressures.


Evangelical Christians, a key grass-roots force behind Republicans’ 2004 election victories, want Bush to choose a firm opponent of abortion and same-sex marriage. The business community, a significant source of political money for the party, has launched an unprecedented drive to ensure that Bush’s choice is friendly to its antiregulatory interests. And GOP strategists eagerly eye the possibility that Bush can expand the party’s appeal to minorities by naming the first Latino to the Supreme Court.

“It leaves Bush with an excellent test of how he balances political considerations, party building, strategic outreach and principled policy,” said David Boaz, executive vice president of the Cato Institute, a libertarian think tank based in Washington.

Whether there is one vacancy or two, White House allies say they are confident that the party’s factions will close ranks as soon as the president chooses a nominee.

“It’s a little like putting the horses into the starting gate: There’s a lot of steam-blowing and whinnying, but they all line up when the bell goes off,” said Eric Ueland, chief of staff to Senate Majority Leader Bill Frist (R-Tenn.), who has helped coordinate party strategy for the court debate.

In the meantime, the jockeying is intense because Bush’s decisions about the Supreme Court will be a defining moment for his presidency and his party. Although Bush says he will not be guided by political considerations, his choice will speak volumes to the country about what kind of party the GOP will be after he leaves office.

This is hardly the first time that Bush and GOP leaders have had to juggle the interests of the party’s factions. This year, business lobbyists told Senate leaders they opposed a strategy for speeding confirmation of lower-court judges -- a top priority for religious conservatives -- because the expected partisan backlash would make it harder to enact business priorities, such as tax cuts and further limits on lawsuits.


Before that, conservative activists warned the White House that their grass-roots supporters might be less inclined to back Bush’s Social Security initiative if he did not show strong commitment to their top concern, a constitutional amendment to ban same-sex marriage.

Intraparty differences are more consequential over the Supreme Court vacancy because it involves not just a single-issue legislative aim but a lifetime appointment that could alter the ideological balance of the court for years.

The most obvious GOP tensions have emerged over speculation that Bush might nominate his longtime friend, Atty. Gen. Alberto R. Gonzales. That appointment would give Bush the distinction of naming the first Latino to the Supreme Court -- a potential boon to the president’s long-term political effort to include more minorities in the party’s base.

But to many conservatives, expanding the GOP’s appeal to Latinos takes a back seat to their ambition to turn the Supreme Court to the right. Gonzales has come under criticism from many conservative activists who contend he is insufficiently committed to opposing abortion and affirmative action.

Twice last week, Bush publicly voiced irritation at the attacks on Gonzales.

“I don’t like it when a friend gets criticized,” the president said at a news conference in Denmark before he attended the Group of 8 summit of leaders of the world’s largest industrialized nations. “I’m loyal to my friends. And all of a sudden this fellow, who is a good public servant and a really fine person, is under fire.”

In less public settings, other Republicans joined Bush in urging critics of Gonzales to stop the sniping, fearing they were giving ammunition to Democrats who wanted to portray Bush as being bullied by conservative ideologues.


“It does no one any good to start a friendly-fire exercise,” said a Republican working closely with the White House. “We are never stronger than when all our wings are beating together.”

The message seems to have worked, as criticism of Gonzales has abated in recent days. “The tone has changed significantly,” said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice.

The White House is hearing from business groups that have taken an unusually active interest in this judicial nomination -- a debate that legal experts and conservatives with a social agenda probably would dominate.

C. Boyden Gray, who heads a coalition of conservative groups mobilizing to support Bush’s nominee, has made a concerted effort to get business groups involved. The U.S. Chamber of Commerce is giving the White House its analysis of potential nominees’ records on issues of concern to business. The National Assn. of Manufacturers also will be reviewing the record of Bush’s choice on such issues as property rights and government regulation -- heedless of the nominee’s views on social issues that are the focus of evangelical and antiabortion groups.

Because business’ concerns are broader and less ideological than social conservatives’, their assessments of jurists do not always coincide. Conservative judges are often pro-business, but not always.

O’Connor’s legacy is a case in point. Nominated to the court by Ronald Reagan, she was widely hailed by business leaders for her rulings on such issues as limiting jury awards and curbing class-action lawsuits. But she angered religious conservatives by being a deciding vote on cases affirming abortion rights and limiting public display of the Ten Commandments.


Among the judges thought to be under consideration by the White House, one who could draw a mixed verdict among Republicans is J. Michael Luttig, an appellate judge in Virginia. A favorite of social conservatives for supporting capital punishment and restrictions on abortion rights, he is not the most reliable business ally in the lineup of potential candidates. In a 2002 study in the journal Judicature of six possible Bush nominees to the Supreme Court, Luttig was found to have ruled on the conservative, pro-business side of economic and labor issues 59.2% of the time -- less than all but one of the six studied.

Boaz of the Cato Institute said libertarians might also be ambivalent about Luttig because, although he generally favored a restrained federal government, he had ruled in favor of strong presidential power over individuals in times of war.

To bridge differences within the party, the White House and its allies have been trying to focus their message on process, not substance. Rather than call for a nominee who would further a particular cause, such as limiting abortion rights, they talk about naming a judge who will strictly interpret the Constitution, not rewrite it.

“What we are selling to people is an overall philosophy, not a results-oriented wish list,” said Sean Rushton, executive director of the conservative Committee for Justice. “Our side would fall into chaos the moment we kick in agitating” for judges who favor specific issues.

Rehnquist’s retirement would give Bush more room to maneuver. Having two vacancies may make it possible for Bush to select one nominee who appeals to the party’s most conservative wing and another who presents a more moderate profile appealing to centrists. Many Republican observers said they believed it would be politically easier for Bush to appoint Gonzales to a second court slot if the first went to a more conservative jurist.

“That way, neither side has their worst fears confirmed,” said Grover Norquist, an administration ally who is president of Americans for Tax Reform.


But that strategy -- replacing Rehnquist with a like-minded conservative and O’Connor with a comparable moderate -- might run into trouble from the right, because it would fall short of the broader aim Bush has led conservatives to expect: that he will fundamentally alter the ideological balance of the court.

“I genuinely think he wants to change the court, so I don’t think he’ll be thinking, ‘I’ll balance one conservative with one moderate,’ ” said Paul M. Weyrich, chairman of the conservative Free Congress Foundation.