Bush Again Faces Tough High Court Choice

This might sound familiar: President Bush may decide this week on whom to nominate to replace retiring Justice Sandra Day O’Connor, the court’s swing vote on issues such as abortion, affirmative action and religion.

The president is under pressure from conservatives to pick someone in the mold of Justices Antonin Scalia and Clarence Thomas. Democrats and moderates say Bush should choose someone like O’Connor, a centrist who is not a predictable vote for conservatives or liberals.

And many others, including First Lady Laura Bush, say the president should consider diversity and choose a woman or a minority.

Bush faced just this choice, as well as the same sets of pressures, in midsummer.

Despite some predictions that he would pick a woman to replace O’Connor, the president chose Judge John G. Roberts Jr., a favorite of Washington’s Republican lawyers, who knew him as smart, affable and conservative.

But when Chief Justice William H. Rehnquist died this month, Bush shifted gears and chose Roberts to succeed Rehnquist. Now, with Roberts coasting toward an easy confirmation with perhaps half the Democrats in the Senate expected to support him, liberals are hoping that the president will move toward the middle and select a moderate, and preferably a woman or minority, to replace O’Connor.

The choice could come as early as this week, after the Senate’s expected confirmation of Roberts.

Conservative leaders say that a drift to the center is unlikely.

The diversity issue “is being overplayed by the media. I think you should take the president at his word: He wants a judicial conservative, someone who is extremely smart, has a good temperament and a reverence for the Constitution,” said Leonard A. Leo, executive vice president of the conservative Federalist Society, who has been advising the White House through Roberts’ nomination process.

Washington lawyer Bradford Berenson, who served in the White House counsel’s office during Bush’s first term, also thinks the nominee will be a true conservative.

“I would predict he will keep his promise and appoint a justice in the mold of Scalia and Thomas, a strong judicial conservative,” Berenson said. “I don’t buy the argument the president will pull his punches. That’s not his style.”

U.S. appeals court Judges J. Michael Luttig in Virginia, Michael W. McConnell in Denver and Samuel A. Alito Jr. in Philadelphia remain on the list of possible nominees.

If Bush looks for “another John Roberts,” some believe, McConnell could emerge as the nominee.

He is a former University of Chicago law professor known for his scholarly interest in religion and the 1st Amendment. He was also a regular advocate before the Supreme Court before Bush named him to the U.S. Court of Appeals in Denver.

“He is a person of proven legal brilliance and judicial temperament, and he is respected by scholars on the left as well as on the right,” said UCLA law professor Eugene Volokh. “He was broadly endorsed by academics when he was nominated before.” Still, he added, “there’s not much political upside for Bush in nominating him.”

The White House has signaled interest in selecting a woman or minority to fill the next court seat.

“All else being equal, the president would go for diversity. Women and minorities will be among the candidates considered,” Berenson said. “The greatest desire is to pick a Hispanic,” he added, because none has ever sat on the high court.

Since Bush came to Washington in 2001, Alberto R. Gonzales, who served as White House counsel before becoming U.S. attorney general, has been at the top of the list of possible nominees to the Supreme Court. When Bush was the governor of Texas, Gonzales served as his counsel and advisor before Bush named him to the Texas Supreme Court.

The Justice Department has been churning with speculation that Gonzales might be the pick. His chief of staff recently announced that he was leaving to take a job in the private sector, a move that some took as a sign that Gonzales was about to make a career move too.

Many believe that if Bush were to elevate Gonzales to the high court, he might name Larry D. Thompson, a former top Justice Department official, as attorney general. Thompson, who is African American, is general counsel at PepsiCo Inc. and has also been mentioned as a candidate for the Supreme Court.

Though Gonzales has won Bush’s loyalty, he has not won over the conservatives who have been the president’s strongest supporters. White House political advisor Karl Rove keeps in close touch with conservative activists, and they have made clear they would not welcome a Gonzales nomination. He is seen by conservatives as a judge who might support the right to abortion as well as affirmative action.

The Rev. Louis P. Sheldon, chairman of the Traditional Values Coalition, says it would help the Republican Party if Bush chose a woman or minority for the Supreme Court, but not if the choice were Gonzales.

“I don’t think the president will do that. It will be too many red flags. The president has to have 100% support like he had for John Roberts. We have had no problems bringing all the groups together, and I think the president wants to leave a legacy. That is why I don’t think [he will select] Gonzales,” Sheldon said.

Washington lawyer Miguel Estrada was the first choice of many Republican lawyers in the nation’s capital, but Democrats blocked his nomination to the U.S. Court of Appeals in 2003.

The number of women being considered has grown in recent weeks. They include Judges Priscilla R. Owen, a Texan and new Bush appointee to the U.S. Court of Appeals in New Orleans; Edith Brown Clement, also in New Orleans, a finalist in July; Edith H. Jones in Houston, an outspoken conservative; Karen Williams in Virginia; and Alice Batchelder in Ohio. All serve on federal appellate courts.

Former California Supreme Court Justice Janice Rogers Brown, who this summer joined the U.S. appeals court in Washington, is also cited as a possibility. So is Michigan Supreme Court Justice Maura Corrigan.

Owen is said to be the favorite of many in the White House, including Rove, who advised her in her campaign for the Texas Supreme Court. And despite strong opposition from Democrats, she kept up the fight to win confirmation to the U.S. appeals court.

Senate Minority Leader Harry Reid said last week that he and other Democrats would see her nomination as a “poke in the eye.” Luttig, Jones and Brown would also provoke opposition from Democrats and possibly lead to a filibuster in the Senate.

In the wake of Roberts’ performance before the Senate Judiciary Committee, which many consider impressive, some lawyers have mentioned Washington lawyer Maureen Mahoney. Like Roberts, she came to Washington as a clerk for Rehnquist. She worked alongside Roberts in the solicitor general’s office under President George H.W. Bush. Since leaving the government, she has been a much sought-after appellate advocate.

Pepperdine University law professor Douglas W. Kmiec, who served in the Justice Department under Presidents Reagan and George H.W. Bush, thinks Mahoney would be an ideal choice. “I would hope that the president would not be fooled [into] thinking that the pool is narrowed and that he only need consider female jurists in the judiciary,” he said. He said Mahoney was “of the same intellectual quality and commitment to legal principle” as Roberts.

This year, she represented the accounting firm Arthur Andersen and won a unanimous ruling overturning its criminal conviction for document shredding related to the collapse of Enron Corp. But despite her legal credentials, Mahoney does not have the backing of conservative activists. They say she lacks a track record that would demonstrate she is a reliable conservative.

In making his nomination, Bush faces something of a political dilemma: Choose a true conservative and face a major fight in the Senate, or choose a moderate and risk losing the backing of his strongest supporters.