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So, religious and social conservatives don’t like Alberto Gonzales. That begs the question of who, exactly, would make them happy. The answer isn’t as easy as it might seem. While there’s a flock of conservative federal appellate judges waiting in the wings to see if Gonzales is, indeed, the president’s choice for the vacancy on the Supreme Court created by Justice Sandra Day O’Connor’s retirement announcement, the would-be justices do not come completely without blemishes. Social conservatives “need to be careful what they wish for,” says Auburn University political science professor Steven Brown, who studies social conservatives. “They’re going to have to run the gamut from taxes to property rights issues, and someone who is reliable on abortion might be less so on the nitty-gritty of religion in the public square.” Nonetheless, for most religious conservatives, a handful of hot-button issues — including abortion rights and religious freedom — will matter most in the judicial nomination debate. THE BIG QUESTION With the retiring O’Connor viewed as a swing vote on abortion, the views of a nominee on this issue will dominate the confirmation process. In that respect, two judges on the 5th U.S. Circuit Court of Appeals may best deliver the goods for social conservatives. Both Edith Jones and her colleague Emilio Garza have indicated they believe that a privacy right to an abortion is not justified under the Constitution. Some of the clearest and strongest language in support of overturning Roe v. Wade comes from Jones. She wrote the majority opinion last year saying that her court did not have the power to grant a request by Norma McCorvey — the original Jane Roe — to reopen the case that successfully challenged Texas’ criminal prohibition on abortion. But she did so with a caveat. In a special concurrence, Jones wrote that advances in scientific research about the psychological and emotional ramifications of abortion suggest that “if courts were to delve into the facts underlying Roe’s balancing scheme with present-day knowledge, they might conclude that the woman’s ‘choice’ is far more risky and less beneficial, and the child’s sentience far more advanced, than the Roe Court knew… . One may fervently hope that the Court will someday acknowledge” the research findings and “re-evaluate Roe and [the 1992 abortion rights case Planned Parenthood v.] Casey accordingly.” Garza weighed in on abortion in a 1997 opinion, concurring with the majority that a Louisiana parental notification statute was unconstitutional. But he included a significant qualification pleasing to anti-abortion-rights advocates. Writing in a separate concurrence, he said that he was forced to follow a Supreme Court opinion he believed was “inimical to the Constitution.” When Casey was before the 3rd Circuit, Judge Samuel Alito argued in a lone dissent in favor of certain state restrictions on abortions. The majority struck down a Pennsylvania law that required women seeking abortions to inform their husbands. When the case got to the high court, Chief Justice William Rehnquist agreed with Alito, quoting him in his dissent. After Jones, Garza, and Alito, at least where social conservatives are concerned, things get squishier. Judge Michael McConnell of the 10th Circuit would appear to be a rock-solid favorite with religious conservatives for his spirited defenses of religious freedom from government intrusion. As a professor, McConnell expressed strong disagreement with the legal reasoning behind Roe and supported a constitutional amendment to ban abortion. But he angered some anti-abortion-rights groups during his confirmation hearings in 2002 by saying that he considered Roe to be “settled law.” Joe Giganti, a spokesman for the National Pro Life Action Center, complains that McConnell has “clearly delineated the problem, but then has said he is not going to do anything about it.” Judge J. Michael Luttig of the 4th Circuit, long considered a strong candidate for a slot on the Court, seems to have been caught in the act of doing his job. In Richmond Medical Center for Women v. Gilmore, Luttig voted to strike down a Virginia law banning “partial-birth” abortion. Luttig said he had no choice but to rule that way because of the Supreme Court’s holding in Stenberg v. Carhart, which struck down a similar law from Nebraska. With strong conservative credentials but a slim paper record, D.C. Circuit Judge John Roberts Jr. is well respected by many Washington insiders, both conservative and liberal, but is less familiar to a broader conservative constituency. In 1990, as deputy solicitor general, Roberts was the lead lawyer in a case in which the government argued that Roe should be overturned. He has not dealt with the abortion issue while on the bench. But looking for definitive answers on Roe from appellate court judges isn’t likely to yield clear answers, says Clyde Wilcox, a Georgetown University political science professor. “They don’t like Gonzales’ rulings on abortion even though that was all he could do within the context of Roe,” says Wilcox, referring to an abortion parental notification decision that Gonzales wrote while on the Texas Supreme Court. RELIGIOUS RIGHTS Apart from the abortion issue, Garza and McConnell appear most likely to please social conservatives on the issue of religious freedom. Garza dissented from a 1999 majority decision that a program which brought members of the clergy into a Texas public school to counsel students during class hours violated the Constitution’s ban on government establishment of a state religion or its preference for a certain religion. McConnell has consistently endeared himself to religious conservatives. As a law professor, he expressed positions favoring religious expression and supporting school vouchers and aid to parochial schools. But McConnell’s beliefs don’t simply extend to Christianity. During the Supreme Court’s next term, the Court will hear a case about a religious sect that consumed hallucinogenic tea as part of a religious ritual. In the case, McConnell wrote a concurring opinion upholding the sect’s right under the Religious Freedom Restoration Act to consume the tea. That position was a diametrical opposite of the Bush administration’s argument that the sect was subject to federal drug laws. And a ruling by Alito, himself a Catholic, might disturb religious freedom advocates who support widespread displays of the Ten Commandments in public buildings. In a 3rd Circuit opinion from 1999, Alito ruled that a city’s holiday display of a nativity scene and a menorah didn’t violate the Constitution because it also included secular symbols and a banner promoting racial diversity. Some conservatives favor allowing displays of the Commandments without added symbols. OTHER ISSUES In 1999, Luttig showed his conservative stripes by writing for the majority in striking down parts of the Violence Against Women Act as an abuse of Congress’ authority. But in a civil rights case in 2002, Luttig expressed concern that his colleagues had gone too far in dismissing a plaintiff’s suit against a police officer who handcuffed the plaintiff to a metal pole in a deserted shopping center parking lot in the middle of the night. Luttig argued that reasonable officers would know that such conduct was unconstitutional. Perhaps the person on the short list who confounds conservatives and liberals alike is Judge Edith Brown Clement of the 5th Circuit, who has been on the bench since 2001. To her benefit and detriment, she makes both conservatives and liberals uneasy because she has not written many notable opinions, especially in hot-button areas like abortion and religious freedom. Two of the most noteworthy opinions written by Clement are in the area of criminal rights and law enforcement. In Traver v. City of Edna, she wrote for a unanimous panel that allowed the plaintiff to sue police officers for violating his due process rights when they slammed his head against a car door during his arrest. In Hearn v. Dretke, a habeas case that involved a death row inmate who claimed mental retardation, she found that he was entitled to a lawyer to help with the claim — a conclusion, she noted in the opinion, she was forced to reach because of a Supreme Court ruling in 2002 that found executions of the mentally ill were unconstitutional. If Judge Edith Jones’ recent record is any indication, she would be more than willing to disagree with fellow Supreme Court justices on criminal issues — and perhaps endear herself to law-and-order conservatives. Jones was recently slapped down by the Supreme Court for her decision as part of a three-judge panel that rejected claims by an African-American defendant who alleged the prosecution purposefully excluded blacks from the jury in his capital case in violation of Batson v. Kentucky. Note: For more new Legal Times coverage on the attorney general and the Supreme Court, see DOJ’s Needs May Torpedo Gonzales as High Court Contender.

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