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Justice Sandra Day O’Connor’s surprise retirement leaves President George W. Bush in a bind: Can he possibly replace the first woman on the Supreme Court with a white male? After all, prior to O’Connor’s July 1 announcement, most of the smart money for a potential high court nominee was on middle-aged white judges such as John Roberts of the U.S. Court of Appeals for the D.C. Circuit and J. Michael Luttig of the 4th Circuit. But that was to replace Chief Justice William Rehnquist, who, at least for the moment, is staying. “Do you replace O’Connor with a woman, or with a Hispanic, so you have a new first?” says American University law professor Stephen Wermiel. “The question is, who are you trying to appease? And are you looking for a fight — or looking to avoid a fight?” Competing interest groups lost no time in laying down markers, and rallying their troops. Hispanic activists, for one, and their interest groups say the opportunity is ripe for Bush to name the nation’s first Hispanic justice. Nominating a Hispanic would also help the Republican Party woo a key and growing constituency that it has actively courted. “It’s been 10 years now since we’ve had a vacancy, and a lot has changed,” notes Mickey Ibarra, a former Clinton administration official who now has his own lobby shop. “Hispanics are becoming the largest minority, and whether it’s for a replacement of Rehnquist or O’Connor, consideration of a Hispanic seems like it has to be a must.” But the person some see as the leading Hispanic candidate, Attorney General Alberto Gonzales, is viewed as flatly unacceptable by the hard-line conservative and evangelical groups that take credit for Bush’s presidential re-election victory. “He’s not an ideological conservative; it’s not a world he comes from,” notes one senior Republican Senate staffer. “And we don’t believe he has convictions he will stand by. As one former Supreme Court clerk said to me, ‘When the most charming man in Washington, [Justice] Stephen Breyer, comes calling, will Gonzales stand up for his beliefs?” That may make someone like Judge Emilio Garza of the U.S. Court of Appeals for the 5th Circuit a more likely candidate. Garza is viewed as a passionate opponent of Roe v. Wade. And if the White House seeks a minority candidate, but not a Hispanic one, it could turn to former Deputy Attorney General Larry Thompson, now general counsel of PepsiCo. There is also the possibility of nominating a female justice to replace O’Connor. Here, the most likely candidates are two judges on the 5th Circuit — Edith Jones, who was appointed by President Ronald Reagan, and Edith Brown Clement, a 2001 Bush appointee. Jones is considered by conservatives to be ideologically sound. But her lengthy paper trail and outspoken manner would give opponents plenty of ammunition. In O’Connor’s case, it isn’t as simple as replacing a woman with another woman, or a minority with a minority. As the Court’s most consistent swing vote, O’Connor’s replacement could have a far greater impact on future Supreme Court decisions — about affirmative action, federalism, and abortion, for example — than Rehnquist’s replacement would have. “The significance could not be greater,” says Elliot Mincberg, general counsel of People for the American Way, one of the leading liberal interest groups in the upcoming Supreme Court fight. “It’s not a question of being merely conservative,” said Mincberg, about a possible O’Connor replacement. “It’s a question of [a nominee] being so far to the right as to literally flip the Court in a whole range of areas.” And some interest groups are counting on that. “We expect the president to be true to his word, as he has been with his appellate court nominations, and to name someone in the likeness of [Justices Antonin] Scalia and [Clarence] Thomas,” says Jan LaRue, the chief counsel of Concerned Women for America, a conservative public policy women’s organization, which claims 500,000 members. Of course, Bush always retains the possibility of replacing O’Connor with one of several appellate court judges who had been considered strong possibilities if Rehnquist resigned, such as Roberts, Luttig, or Michael McConnell of the 10th Circuit. “I think the smart move is to pick John Roberts,” says American University’s Wermiel. “I think Roberts will play very well in the nominations process. He’s polished, accomplished, easygoing, and not intimidating.” If the White House wants a fight, it will find one. And if Bush does name a far-right ideological conservative, like Luttig or Jones or Garza, Senate Democrats would almost certainly filibuster the nominee. In that case, the Senate would be right back to the ugly precipice where it found itself this spring, with Senate Majority Leader Bill Frist (R-Tenn.) threatening to use a parliamentary maneuver to eliminate the judicial filibuster. That crisis was averted, at least for the time being, by a May 23 deal cut by seven moderate Democrats and seven moderate Republicans. The Democrats agreed not to filibuster a nominee, and the Republicans agreed not to eliminate the judicial filibuster, except in “extraordinary circumstances.” The White House may also have to appease the chairman of the Senate Judiciary Committee, Arlen Specter (R-Pa.), whose chairmanship was almost derailed earlier this year after his comments that a Supreme Court nominee who opposed abortion rights was not likely to win Senate confirmation. “The stakes have changed,” Wermiel notes. “Rehnquist was just going to be a dress rehearsal for this moment, for the swing vacancy. But we skipped the dress rehearsal and went to opening night.” Sean Rushton, the executive director of the Committee for Justice, a leading conservative judicial nominations interest group, says Bush should focus on substance, not ethnicity or gender. “Find someone who fits the bill ideologically,” he says. “But all things being equal, why not go with a woman or a Hispanic?” Of course, Bush could always nominate a so-called mainstream conservative, one whom the Democrats could find very few reasons to filibuster. Indeed, at a brief Rose Garden announcement about O’Connor’s resignation Friday, he spoke about wanting a “dignified process . . . characterized by fair treatment, a fair hearing and a fair vote.” Seth Rosenthal, the legal director of the liberal Alliance for Justice, notes that one way the president could avoid a knock- down, drag-out fight is to name one of the Republican-appointed “consensus nominees” recently identified by the Alliance. The four are: Judge Stanley Marcus of the 11th Circuit; Michael Mukasey, a federal trial judge in New York; Judge Edward Prado of the 5th Circuit; and Judge Ann Williams of the 7th Circuit. O’Connor, Rosenthal says, was just such a selection. “She’s certainly a conservative on a host of issues, on states’ rights, criminal justice issues, you name it,” he says. “But she did not bring an ideological agenda to the bench. She decided things on a case-by-case basis. She decided things in an incremental way.” T.R. Goldman can be reached at [email protected]. Reporter Anna Palmer contributed to this report.

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