Next Nominee for High Court Could Be Tough Test for Bush

Times Staff Writer

By nominating John G. Roberts Jr. as chief justice, President Bush may have solved one problem at the price of compounding a greater one.

When Bush named Roberts this week to succeed the late William H. Rehnquist on the Supreme Court, the president met the immediate demand of finding a chief justice nominee who probably could win Senate confirmation expeditiously.

But by redirecting Roberts to the Rehnquist seat, Bush set himself back to square one on a more complex political test: filling the swing seat being vacated by retiring Associate Justice Sandra Day O’Connor.


Roberts’ nomination as O’Connor’s successor offered Bush a chance to tilt the court to the right, with Democrats acknowledging they had little chance of stopping the confirmation.

Some analysts in both parties contend it would be more difficult for the White House to fill the O’Connor seat with anyone else as conservative as Roberts -- whose affable manner, limited paper trail and sterling legal credentials frustrated opponents trying to organize against him.

With Bush’s new move, he may have enlisted Roberts for a job that others could have done: winning confirmation as a conservative replacement for the staunchly conservative Rehnquist. Meanwhile, Bush may have diverted Roberts from a mission for which he appeared unusually well-suited: winning confirmation to succeed O’Connor.

“Bush has solved a very short-term problem by filing the chief justice position [with a choice] that probably will get confirmed very easily,” said Ron Klain, who helped manage two Supreme Court nominations for President Clinton. “But he has set in motion a dynamic that will make the next [court nomination] much harder.”

Similarly, veteran GOP strategist Bill Kristol said that choosing Roberts to replace Rehnquist could make it more difficult for Bush to fill both vacancies with conservatives.

“With this action, in one fell swoop, the president deprived himself and his supporters of the easiest argument for his next nominee: that surely a reelected conservative president is entitled to replace a conservative justice -- Rehnquist -- with another conservative,” Kristol, editor of the Weekly Standard, wrote in the online edition of the conservative magazine.


One GOP strategist familiar with White House thinking rejected that analysis. He said the administration believed that if Bush had kept Roberts as his pick for O’Connor’s successor, Democratic critics still would have vigorously opposed a second nominee they considered too conservative.

“If they came to the conclusion that John Roberts moves the court in a more conservative direction, they would surely demand a ‘course correction’ -- meaning a more liberal nominee -- for the Rehnquist seat,” said the strategist, who spoke on condition of anonymity when discussing the White House moves.

History favors Bush’s chances of winning confirmation for both his choices. In the last century, a Supreme Court nominee has been defeated twice while the president’s party controlled the Senate.

But history offers no guarantees, and a more contentious confirmation fight over Bush’s pick to replace O’Connor -- even if it ends successfully for him -- could further damage the president at a time when criticism about Iraq, high gas prices and the federal response to Hurricane Katrina have weakened him politically.

With Roberts, Bush appeared to thread the needle for the O’Connor vacancy. The nominee drew increasingly enthusiastic support from the president’s base over the last month without igniting scorched-earth opposition from liberal groups or filibuster threats from Democrats.

Abortion rights, civil rights, civil liberties and other liberal groups declared opposition to Roberts, and several intend to testify against him at his confirmation hearings next week for the chief justice slot.

But “it has been more difficult for the opposition to gain traction on the Roberts nomination” than they expected, said Wade Henderson, executive director of the Leadership Conference on Civil Rights, a group that has criticized the nominee.

Yet Roberts’ potentially placid progression toward the Rehnquist seat could come at the price of greater turbulence for the O’Connor seat. The question facing the White House is whether it can find another nominee who so enthuses the right without enraging the left.

“There is the same potential now that there was [when Bush initially nominated Roberts] for a firestorm if he picks somebody who either the left or the right really objects to,” says Steven G. Calabresi, a professor of constitutional law at Northwestern University School of Law and a founder of the conservative Federalist Society.

For instance, Democrats have signaled that Atty. Gen. Alberto R. Gonzales may receive the warmest reception of the contenders Bush initially considered for O’Connor’s seat. But that prospect is generating anxiety among conservatives, who question Gonzales’ stance on abortion and openly fought his candidacy when O’Connor announced her retirement in July.

“Would any of [the president’s] aides have the nerve to explain to the president that a Gonzales nomination would utterly demoralize many of his supporters?” Kristol wrote in his editorial this week.

Publicly and privately, conservatives are arguing that with his poll numbers sagging, Bush needs a nominee who will energize his conservative base even more than he did when he nominated Roberts to O’Connor’s seat in July.

But even many administration allies think Bush probably will feel great pressure to now fill the O’Connor vacancy with a minority or a woman. That reduces the odds for some white males that conservatives favor, particularly appellate Judge J. Michael Luttig of Virginia.

Yet all of the female options most popular with conservatives -- appellate judges Edith H. Jones and Priscilla R. Owen, both of Texas, and Janice Rogers Brown, the former California Supreme Court justice now serving on the appellate court in Washington -- are likely to ignite greater resistance among Democrats than Roberts did, party strategists say. Emilio M. Garza, an appellate judge in Texas considered more conservative than Gonzales, could provoke a similar reaction.

Senate Minority Leader Harry Reid (D-Nev.) cautioned Bush on such nominees Wednesday. “When consulted, [Reid] will urge the president to nominate someone like Justice O’Connor and he does not feel that someone like Luttig, Garza or Jones, among others, fits that description,” said Jim Manley, Reid’s spokesman.

Klain, the former Clinton aide, argued that nominating a hard-core conservative might be riskier for Bush now than earlier this summer. With his poll numbers hovering near an all-time low, Bush has greater need to court centrist swing voters than he did in July, Klain said.

More tangibly, Klain said, moderate Democrats -- especially from states Bush won in 2004 -- may find it easier to vote against a highly ideological second nominee if they vote to confirm Roberts. “The way it is being set up ... gives them a lot of capital in the bank to vote against the next” nominee, he said.

Many Republicans remain optimistic that Bush can muscle through whomever he selects, moderate or conservative, for the O’Connor vacancy. That confidence has swelled amid the Democrats’ difficulty in mounting a unified opposition to Roberts.

The next few weeks could answer whether Roberts’ expected smooth course onto the court will reflect structural weaknesses in the Democratic opposition -- or assets unique to a nominee Bush may end up wishing he had preserved for a tougher fight.