Vacancy Puts Bush In a Bind

George W. Bush found his perfect Supreme Court candidate in John Roberts Jr. And that’s a problem — at least when it comes to Bush finding a follow-up nominee to the Court. “John Roberts set a very high standard,” says University of Pittsburgh law professor Arthur Hellman. “His sheer ability, accomplishment, and brain power make almost anyone look lower on the scale.” And it’s not simply a matter of appearances. Whether the chief consideration for a nominee is that he or she be a woman, a Hispanic, or a hard-core conservative — or some combination of the three — there are serious issues for the White House with every identified contender. On top of that lies a shifting political landscape. The nation is in a different place than when Justice Sandra Day O’Connor announced her retirement in June. Hurricane Katrina has come and gone (with Rita right behind), leaving Bush weaker than he has ever been, while destruction and death in Iraq continue unabated. How the president’s current political woes might influence the selection of the next Supreme Court justice is an open question; a short-term dip in the polls may mean very little compared with the significance of a decision that will reverberate for decades. For while Senate Democrats are emboldened, they still have only 44 members. And while the May 2005 compromise of seven moderate Democrats and seven moderate Republicans saved the judicial filibuster, it also made its use that much more unlikely. Regardless, last week, even as he was voting to support Roberts, Sen. Patrick Leahy (Vt.), the ranking Democrat on the Senate Judiciary Committee, sounded like someone spoiling for a fight. “With this vote I do not intend to lend my support to an effort by this president to move the Supreme Court and the law radically to the right,” he said on the Senate floor. Whomever the choice, it is likely to be announced very soon, possibly by the end of the week. In part, the White House would like to sustain the momentum left over from the Roberts hearings. But there’s also a desire among conservatives to see O’Connor’s replacement confirmed before the Court takes up its first abortion case in five years, Ayotte v. Planned Parenthood of Northern New England, on Nov. 30. Given that Bush will take a certain amount of heat no matter whom he picks, he could well decide to ditch all impulses toward a candidate in a certain demographic and simply go with his oft-stated preference for a jurist in the model of Antonin Scalia or Clarence Thomas, regardless of the person’s ethnicity or gender. “My hunch would be that that’s his top priority — to make the Court more conservative,” notes American University law professor Stephen Wermiel. “Because if you don’t go with somebody conservative, you’re right back where we started, with a moderate, middle vote.” In that case he could opt for Judge Michael McConnell of the U.S. Court of Appeals for the 10th Circuit, or former Deputy Attorney General Larry Thompson, now general counsel at PepsiCo Inc. McConnell, 50, sides with social conservatives on abortion and school vouchers, for example, but was also endorsed by some 300 academics, many of them liberal, during his 2002 appeals court confirmation. Meanwhile, Supreme Court Justice Thomas is a close friend of Thompson, who is also African-American. That fact may offset the drawback that Thompson, 59, a former federal prosecutor, has never been a judge. Another plus for Thompson: He’s on a list of judges that Senate Minority Leader Harry Reid (D-Nev.) said his party could support during a Sept. 21 meeting at the White House, according to one senior Democratic aide. PICKING THE RIGHT FIGHT The more relevant question, however, suggests one person formerly involved in Bush administration judge-picking, is not which constituency Bush wants to please but how much of a fight he is willing to take on. “And if you’re willing to take on a fight, it has to be a fight you can win,” says the former judge picker. “So you start with women and minorities, and you say, �Is there a fight I can win? And whom am I fighting, the left or the right?’ “ Take Attorney General Alberto Gonzales, 50, a longtime Bush buddy and a much-discussed candidate. Bush will draw heavy fire from the far right if he nominates Gonzales — that much is clear. But that could be offset by two other factors: Bush’s contrarian streak, which might cause him to choose his favorite lawyer precisely because he was pilloried for suggesting him, and Bush’s desire to leave a legacy, in this case the first Hispanic appointment to the Supreme Court. An added political upside: major points with Hispanic voters, a group Karl Rove has targeted as key to establishing Republican electoral dominance. Unquestioned, though, is Gonzales’ loyalty to Bush and his brief record as a Texas Supreme Court justice supporting big business. Many also feel that Gonzales’ tenure as White House counsel and attorney general, during which he has had to defend presidential authority and deal firsthand with the war on terror, may have made him more judicially conservative. But there’s another problem with nominating Gonzales, notes Edward Whelan, a former Supreme Court clerk who now runs the Ethics and Public Policy Center. Under standard principles of judicial recusal, Gonzales would have to sit out any case in which he had offered advice while working for Bush, Whelan notes. These could include cases concerning a federal ban on “partial birth” abortion, assisted suicide, and the war on terror. Recusal standards, adds Whelan, “are all dependent on a full understanding of facts, but given the jobs he’s had, it’s highly unlikely that he’s not been giving advice on these subjects. If Gonzales fills the O’Connor seat, it is entirely predictable that there will be 4-4 affirmances of bad decisions below, on issues of the highest priority to the president and very important to the social conservative base.” Aside from Gonzales, however, there’s not really an appealing Latino candidate for Bush to tap. Emilio Garza, 58, appointed to the 5th Circuit by President George H.W. Bush in 1991, is extremely conservative and was the elder Bush’s backup for Thomas. But he is not regarded as a serious candidate this go round, says one senior Senate Republican leadership aide. Ricardo Hinojosa, 55, has Democratic admirers from his service on the U.S. Sentencing Commission. But he has been a district court judge since 1983 and hasn’t ever shown an inclination to move to the appellate level. “I don’t see any Hispanic that is going to fit the bill in terms of satisfying all the interests that this next appointment is going to fill,” says one Hispanic lawyer active in judicial politics. It’s a different scenario for female jurists, of which the leading candidates are Garza’s equally conservative 5th Circuit colleagues, Edith Jones and Priscilla Owen. Owen, 50, is a brainy former commercial litigator who endured four filibuster votes in 2003, only to be confirmed to the federal bench in June as part of the Gang of 14 compromise. The former Texas Supreme Court justice is well known to Bush — her Texas campaign was run by Rove — and she is widely considered a front-runner. But her previous filibusters make her highly radioactive, and could be enough to set off a Democratic filibuster threat again. That could inspire Bush’s more provocative side, notes one conservative judicial activist. “The president, for better or worse, seems to make his picks based on people he puts a lot of trust in, in his gut,” he says. “And he knows Owen very well. It would be a striking move, an in-your-face move.” A Democratic filibuster threat would push Senate Majority Leader Bill Frist (R-Tenn.) to detonate the nuclear option. And while he almost certainly has the votes this time to eliminate the judicial filibuster, Democrats could respond to that by bringing the Senate to a crawl. Complicating matters this time around: midterm congressional elections next year and an increasingly grumpy electorate, if poll numbers are any guide. Jones, even more than Owen, is an outspoken conservative who has written forcefully about Roe v. Wade, calling the decision “an exercise in raw judicial power.” But while Owen exudes Southern gentility, Jones, 56, is far more abrasive, according to one lawyer familiar with the 5th Circuit. “I could see her losing it and snapping back at a senator,” says the lawyer, adding that Jones “has a way of making a face sometimes, unconsciously, as you’re talking, if she doesn’t like what you’re saying. I can see her doing something like that on C-SPAN.” NEW CONTENDERS And there are three other female jurists whose names have recently been touted. Consuelo “Connie” Callahan, 55, is a 9th Circuit Hispanic judge who covers the ethnicity and gender bases. Confirmed with broad bipartisan support in 2003, Callahan has “none of the obvious flame points — she’s never said anything about abortion, congressional power, or privacy,” says the University of Pittsburgh’s Hellman. Alice Batchelder, 61, appointed to the U.S. Court of Appeals for the 6th Circuit in 1991 by Bush’s father, has sterling conservative credentials. In 2003 she upheld Ohio’s “partial birth” abortion ban. She believes that the commerce clause includes significant limits on congressional power and dissented from a majority decision upholding affirmative action at the University of Michigan. Like Batchelder, the 4th Circuit’s Karen Williams, 54, was also nominated to the appeals court by Bush’s father. The particularly tawdry details of one case in which Williams dissented in part could make for trouble in a nomination hearing. In a 2003 sexual harassment case, Williams said that a jury’s compensatory damages award to a woman who had been the target of highly sexually explicit language and behavior in an all-male workplace should be thrown out. “Congress has proscribed gender-motivated discrimination in the workplace, not immorality, vulgarity, or disrespect,” Williams wrote. “I cannot agree that this jury verdict can be sustained by simply recounting various types of vulgarity and then concluding. . .that such behavior constituted gender-motivated discrimination.”

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T.R. Goldman can be contacted at [email protected]. Reporter Lily Henning contributed to this report.