The Supreme Court wraps up its term this week amid intense speculation that Chief Justice William H. Rehnquist, ailing with cancer, is poised to announce his retirement.
If he does retire, there is one sure bet: President Bush will get a chance in the weeks ahead to choose a new leader for the Supreme Court, and he will pick a conservative.
But the kind of conservative the president selects could determine whether there is an epic, summerlong fight over the Supreme Court.
The White House counsel’s office, according to sources who spoke on condition of anonymity, has compiled a list of a dozen possible nominees to the high court -- and all of them are considered conservative. Most are judges on the U.S. appeals courts.
All of them can expect to be opposed by liberal interest groups, which have spent the last four years gearing up to fight Bush’s court nominees.
Several top candidates could look forward to a relatively easy confirmation in the Republican-controlled Senate. They include: Judges John G. Roberts Jr., 50, a cautious and highly regarded Bush appointee to the U.S. Court of Appeals in Washington, D.C.; J. Harvie Wilkinson III, 60, a scholarly veteran judge on the U.S. Court of Appeals in Richmond, Va.; and Michael W. McConnell, 50, a former University of Chicago law professor who sits on the U.S. Court of Appeals in Denver.
If named by Bush, they would be likely to have the support of the Senate’s 55 Republicans and stand a good chance of picking up Democratic votes.
The same is true of Atty. Gen. Alberto R. Gonzales, 49. A former Texas Supreme Court justice and White House counsel during Bush’s first term, Gonzales would be the first Latino to serve on the high court.
But if the president chooses to set off a big fight, he may name a judge who has shown a more hard-edged ideology and a determination to push the law to the right. That could include Judge J. Michael Luttig, 51, an appellate judge in Virginia, or Antonin Scalia or Clarence Thomas -- whom Bush has called his favorite justices.
A scholar who closely follows Supreme Court nominations predicted that Bush would choose confrontation over compromise.
“Bush has taken a very aggressive approach so far with his lower court nominees,” said David Yalof, a political scientist at the University of Connecticut and the author of a book on how presidents select Supreme Court justices. “It would be bizarre if when the first vacancy arose on the Supreme Court ... to suddenly become more timid, more compromising.”
Scalia and Thomas have drawbacks as candidates, of course. Elevating either man would mean two confirmation battles -- one to get Senate approval of the chief justice and another to confirm a newcomer to the court.
But “the biggest thing going against Scalia is age,” Yalof said.
At 69, he is not particularly old for a Supreme Court justice. But he could not be expected to lead the court for decades, as a younger nominee might.
Thomas, who just turned 57, had a famously difficult confirmation in 1991 and won on a 52-48 vote. He has told friends he has no wish to go through a second confirmation in the Senate, where old allegations of sexual harassment would probably be revisited and some of his legal opinions would probably be attacked.
But judging from other controversial Bush nominees -- including appeals court candidates and John R. Bolton to be United Nations ambassador -- the prospect of a confirmation struggle is not likely to deter the White House or GOP senators.
Wilkinson and Luttig, who are often compared as potential justices because they sit on the same court, differ in their legal approaches.
Five years ago, for example, they took opposite sides in a case on the Endangered Species Act. A North Carolina farmer had questioned how federal authorities had the power to bar him from killing endangered red wolves that poached on his land.
Wilkinson wrote the court’s opinion for a 2-1 majority, saying the red wolf was a national treasure that could be protected by federal law. Luttig dissented, maintaining that the Endangered Species Act was unconstitutional. He accused Wilkinson of ignoring high court precedents that limited the reach of federal power.
For its part, the Supreme Court remains split on the issue. Thomas and Scalia have voted to limit federal environmental laws but have been unable to muster a majority. Their chances would improve if Luttig joined them.
Wilkinson is considered the most experienced and accomplished of the leading candidates. He was a student at Yale in the mid-1960s, along with Bush, and later served as a clerk to Justice Lewis F. Powell. He was also a law professor at the University of Virginia, the editorial page editor of the Norfolk Virginian-Pilot and the author of several books -- including a well-regarded history of the struggle over school desegregation in the 1960s and 1970s.
President Reagan appointed him as a judge, and he served as chief judge of the U.S. 4th Circuit Court of Appeals. Some believe his intellect, experience and gracious manner make him the ideal choice to replace Rehnquist.
But at 60, he is about a decade older than Roberts, McConnell or Luttig, which could hurt his nomination chances.
Most of Luttig’s professional life has been spent working in Republican administrations or for conservative judges. His first job after law school was in the Reagan White House. He later was a clerk to Scalia on the District of Columbia appellate court and to then-Chief Justice Warren E. Burger. Luttig was a 37-year-old lawyer in President George H.W. Bush’s administration when he was named to the federal court in Richmond. He delayed donning the black robe in the summer of 1991 to help the White House win confirmation for Thomas.
In 1994, Luttig’s father, John, was shot and killed in the driveway of his Tyler, Texas, home by three young men who tried to hijack his car. Judge Luttig attended the trial and testified during the sentencing hearing in which one of the young men, Napoleon Beazley, was given a death sentence. Beazley was later executed for the crime.
Roberts appears to be the favorite of Washington’s Republican lawyers. As a lawyer, he argued regularly before the Supreme Court. He was once a clerk to Rehnquist on the Supreme Court and a deputy to then-Solicitor Gen. Kenneth W. Starr at the Justice Department.
He is not known for sharp words or strongly ideological views. Two years ago, at his confirmation hearing before the Senate Judiciary Committee, Roberts sat quietly while the senators quizzed other federal appellate nominees about their controversial comments.
“If I had to pick, I’d say it will be John Roberts,” said Bradford Berenson, a White House lawyer during Bush’s first term who stressed that he was not relying on inside information. Roberts “is young, conservative, a Bush appointee -- and his would be an easier confirmation.”
McConnell, the former professor at Chicago and at the University of Utah, was a scholar of church-state law and is a favorite among religious conservatives.
As an academic and as an advocate before the Supreme Court, he opposed the strict separation of church and state, arguing that the Constitution was intended to preserve religious liberty. He supported school vouchers that allowed some students to enroll in religious schools, and he defended student-led prayers in public schools. However, he opposed graduation prayers that were led by school officials.
More than 300 law professors -- liberals as a well as conservatives -- signed a letter in 2002 endorsing his appellate court confirmation.
The White House list also includes Judge Emilio M. Garza, 57, of the U.S. 5th Circuit Court of Appeals in New Orleans. He is a conservative Roman Catholic of Mexican heritage who served in the Marine Corps. First appointed by Reagan, he was briefly considered for the Supreme Court by President George H.W. Bush in 1991. Since then, he has written opinions that are skeptical of the right to abortion set in Roe vs. Wade.
Though Garza is rarely mentioned as a leading candidate, Washington attorney Tom Goldstein, a regular advocate before the Supreme Court and a Washington legal insider, calls him “definitely the most likely choice” because he fits ideally with what the Bush White House is seeking.
Gonzales, who became attorney general in February, has been a top candidate for the Supreme Court since Bush became president, but he is not the favorite among conservative activists and Christian evangelical leaders. They see him as a moderate on abortion and affirmative action; in the past, they have said they would oppose his nomination if he were chosen to replace the conservative Rehnquist.
Conservative activists have not forgotten that the first President Bush chose New Hampshire Judge David H. Souter for the high court. Though he was famously called a “home run for conservatives” by then-White House Chief of Staff John H. Sununu, Souter has voted regularly with the court’s liberal bloc.
Gary Bauer, president of the conservative group American Values and a onetime Republican presidential candidate, says the nomination of Gonzales “would be a disappointment. A lot of conservatives just don’t feel the evidence is clear that he would vote in the conservative bloc.”
Bush may also turn to Washington attorney Theodore B. Olson, the former U.S. solicitor general, or to Sen. John Cornyn (R-Texas), a former Texas Supreme Court justice and state attorney general. Both could have the stature to serve as chief justice if Rehnquist retires.