Roberts Seen as a Template to Follow

Times Staff Writers

When President Bush accepted Harriet E. Miers' withdrawal as a Supreme Court candidate Thursday, the air immediately filled with fresh advice.

Republican lawmakers and conservative activists called on Bush to return to the model of his previous nominee -- new Chief Justice John G. Roberts Jr. -- and choose a conservative judge with stellar credentials and an intellectual bent.

"He has to go strongly for credentials," Republican pollster David Winston said. "Whoever he chooses is someone that everyone has to look at and, while they may disagree ideologically, in terms of credentials is seen as unassailable. Like the guy Bush picked for the Fed," he said, referring to Ben S. Bernanke, a well-received Princeton economist.

Sen. Sam Brownback (R-Kan.) said he hoped "the president puts forward a well-qualified, conservative jurist with a clear legal philosophy, just like he talked about during the campaign."

Bush is seeking a successor for retiring Justice Sandra Day O'Connor, the court's swing vote on abortion and other hotly contested issues.

One name mentioned often Thursday was Judge Michael W. McConnell, 50, a scholarly former law professor whom Bush put on the U.S. Court of Appeals in Denver. He is a favorite of religious conservatives and won the support of more than 200 legal academics, some of them liberals, when he was chosen as a judge.

He is "exceptionally well-qualified" and would be "hard to demonize" because he has a friendly demeanor and an academic manner, said Boston University law professor Randy E. Barnett, a libertarian.

"He is the closest to Roberts" and "definitely would be confirmed," predicted Drake University law professor Dennis Goldford.

Others pointed to Judge Diane Sykes, 48, a former Wisconsin Supreme Court judge who had a tough law-and-order record. She won the support of the state's two Democratic senators when Bush named her to the U.S. Court of Appeals in Chicago.

Judge Alice Batchelder, 61, a veteran conservative judge on the U.S. appeals court in Ohio, is favored by conservative activist Paul M. Weyrich. "She's got an excellent record and is very solid," he said.

Still another favorite of some conservatives close to the White House is Judge Samuel A. Alito Jr., 55, who serves on the U.S. Court of Appeals in Philadelphia.

"If you are looking to repeat the Roberts experience, I think you nominate Sam Alito," said Brad Berenson, a Washington lawyer who served in the White House counsel's office in Bush's first term. "You will have to endure some criticism on race and gender diversity, but that is probably a transient irritant rather than a formidable obstacle to confirmation."

It is not clear whether Bush will see the matter in the same light. He may feel chastened by the beating his Supreme Court nominee took at the hands of his conservative supporters, but he also could be angry at the treatment of Miers, his longtime confidante.

One month ago, Bush faced a similar predicament, and for reasons that are not clear, chose Miers rather than a conservative judge to fill O'Connor's seat.

At the time, White House aides admitted they had no ideal candidate for Bush's second court pick. All of the finalists had an obvious drawback, they said.

If he tried to make history by choosing the first Latino in the person of Atty. Gen. Alberto R. Gonzales, conservatives said they would feel betrayed. They said Gonzales was too moderate -- like O'Connor -- on issues such as abortion and affirmative action.

Democrats and liberal activists promised an all-out war in the Senate if Bush were to choose an outspoken conservative with a clear record that would please the right. First Lady Laura Bush weighed in, saying she would be displeased if the nominee were not a woman.

Bush had a long list of potential conservative nominees, many of them women. They included Judges Priscilla R. Owen, 51, and Edith H. Jones, 56, from Texas; and Janice Rogers Brown, 56, the former California Supreme Court justice who is now on the U.S. appeals court in Washington. Democrats and liberal activists had targeted all three as reactionaries who would prompt a fight in the Senate.

Bush also could have nominated a well-known conservative such as J. Michael Luttig, 51, or J. Harvie Wilkinson, 60, both from Virginia. They too would have faced significant opposition from Democrats.

After a weekend retreat at Camp David, Bush surprised nearly everyone by opting to avoid a fight with the right or the left -- or so he apparently thought. He chose Miers in part because her name had not drawn opposition from any quarter. That was so, however, because no one had considered her a serious candidate when White House aides leaked her name.

Nonetheless, Bush's move at the start of this month cast doubt on whether outside analysts could predict what he would do next.

If he wants to avoid a Senate fight over the Supreme Court, he could choose a senator. The two names cited most often are Sens. John Cornyn (R-Texas), who served as Texas attorney general and as a justice on the state Supreme Court, and Jon Kyl (R-Ariz.), who was a lawyer in Phoenix before running for office.

Last month, many in Washington thought Bush might turn to Washington lawyer Maureen Mahoney, whose legal career had parallels to John Roberts'. Both had worked as clerks at the Supreme Court for then-Justice William H. Rehnquist. Both had served in the U.S. solicitor general's office during the administration of George H.W. Bush. And both had been highly successful lawyers in cases before the high court.

But Mahoney, 52, has not been a judge, and Miers' downfall was seen as making it less likely that the president would turn to someone without a track record as a jurist.

Senators simply "have a great deal of comfort in confirming a sitting judge," said Gene Schaerr, a Washington lawyer who has served as a clerk at the court. "I think people who are on the list who are judges, and have established track records of interpreting statutes and the Constitution, are in a better position as a result of what happened to Harriet Miers."

Likewise, the Miers aftermath may complicate any continuing chances for consideration of Gonzales.

Berenson, the former White House aide, said Gonzales shared with Miers potential issues over executive privilege, as well as what is now clear: "the potent implications of opposition from the right."

Times staff writers Janet Hook and Richard Simon contributed to this report.

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(BEGIN TEXT OF INFOBOX)

Possible candidates for the Supreme Court:

Samuel A. Alito Jr.

Federal appeals court judge

Has a strong record of public service as a prosecutor, Justice Department official and judge. Viewed as reliably conservative but not considered as strident as some of the other possible nominees.

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Janice Rogers Brown

Federal appeals court judge

Favored by social conservatives and loathed by liberals because of her arch-conservative jurisprudence on the California Supreme Court and public speeches critical of the Supreme Court. Likely to engender threats of a filibuster.

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Alberto R. Gonzales

Attorney general

Has two major liabilities that Miers had: the executive privilege issue and resistance from social conservatives who doubt he is sufficiently antiabortion. Some analysts say his prospects were perhaps the most damaged by what happened in the Miers nomination.

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Michael W. McConnell

Federal appeals court judge

Supported by liberal and moderate law professors when he was nominated to the federal appeals court. Would be controversial among liberal interest groups because of his opposition to Roe vs. Wade and his positions on church-state relations.

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Priscilla R. Owen

Federal appeals court judge

Close to the president and Karl Rove, who managed her campaign for the Texas Supreme Court in the 1990s. Her nomination for the 5th Circuit was stalled for four years in the Senate by Democratic opposition. She would likely generate a filibuster because of her archconservative record.

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Diane Sykes

Federal appeals court judge

Was backed by both of Wisconsin's Democratic senators when confirmed to the 7th Circuit in 2004. Liberal interest groups are worried about her views on abortion and criminal justice issues.

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Edith H. Jones

Federal appeals court judge

Has been on the short list of possible nominees to the high court since Ronald Reagan was president. Considered hard-right, and is firmly opposed to Roe vs. Wade.

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J. Michael Luttig

Federal appeals court judge

Has been an outspoken conservative on the bench. He lives in the Virginia suburbs of Washington and has kept in touch with conservative lawyers in top positions of the Bush administration. His nomination would be likely to prompt a bruising fight in the Senate.

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Alice Batchelder

Federal appeals court judge

Was made a judge by George H.W. Bush in 1991 and was interviewed by the White House to fill the O'Connor vacancy. She has a reputation as a judicious conservative not given to harsh rhetoric. Her age -- 61 -- was considered a drawback.

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J. Harvie Wilkinson III

Federal appeals court judge

A highly regarded conservative and a college friend of George W. Bush. He was seen as a top candidate to replace Chief Justice William H. Rehnquist had he retired early in Bush's term. But some think the 60-year-old's chance for a court appointment has dimmed.

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Sources: Times staff writers Henry Weinstein and David G. Savage; Associated Press photos

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