Chicago Tribune - President Bush Said to Have Narrowed His List for Top Spot on Supreme Court

September 29, 2005
By Jan Crawford Greenburg
Washington Bureau

WASHINGTON -- The White House has narrowed the list of possible replacements for Justice Sandra Day O'Connor to about a half-dozen names, presenting President Bush with a tough choice at a difficult time in his presidency, even as the future direction of the Supreme Court hangs in the balance.

Senior administration officials consulted this week with outside advisers and told them to be on alert for an announcement anytime after Thursday's Senate vote on Judge John Roberts Jr.'s nomination as chief justice. But they have not indicated, in talks with outside advisers or senators, who the nominee will be.

There is no ideal candidate, White House officials have concluded. In narrowing the list of possible nominees, officials have confronted the harsh reality that all potential candidates have significant downsides for the administration, numerous sources close to the process said.

Unlike with Roberts' nomination, which initially was greeted with enthusiasm by those on the left and right, the next pick is all but certain to anger some and disappoint others--at a time of war, natural disasters and allegations of ethical shortcomings against top Republicans on Capitol Hill.

No less than the future of the court, now split 5-4 on such key social issues as religion, race and abortion, is on the line.

'This is the swing vote'

"This is the most closely divided court in Supreme Court history," said Jay Sekulow, chief counsel for the American Center for Law and Justice, a conservative legal organization. "This is the swing vote. Everybody--right, left and center--knows what is at stake here."

The ethnic and gender politics of this choice are more complicated than they were for the previous nomination. White House officials recognize it could be Bush's last Supreme Court pick, and he is under enormous pressure to select a woman or minority. Senators, First Lady Laura Bush--even O'Connor herself--have expressed the hope that he would nominate a woman to replace the first female justice.

But the White House has not ruled out picking a white man, sources close to the process said. After a sweeping search of dozens of nominees, White House officials were unable to identify a woman or minority who would be an ideal choice to replace O'Connor, the sources said.

Some were deemed too controversial and could lose Republican support in the Senate. Others had personal issues or did not want to be considered for the job. Others were too liberal or considered to be too unpredictable in their legal views.

At the end of the process, the leading contenders include current and former high-ranking administration officials with long ties to Bush: Atty. Gen. Alberto Gonzales and White House Counsel Harriet Miers, as well as former Deputy Atty. Gen. Larry Thompson, who is now the general counsel of Pepsico and would be the court's third African-American justice.

Bush has long said he would like to name the first Hispanic to the high court, and Gonzales is the only prospect to emerge at the end of the summerlong selection process.

"Nobody should be ruling him out," one Republican adviser said Wednesday.

Washington lawyer Brad Berenson, who worked for Gonzales in the White House counsel's office during Bush's first term, said, "Gonzales is really the only candidate who satisfies each and every one of the president's substantive criteria."

But neither Gonzales, Miers nor Thompson would energize the president's conservative base, which has urged Bush to seize the moment to nominate a candidate with a well-defined judicial philosophy who would change the direction of the court. O'Connor's vote determined the result in key cases involving religion, race, abortion and the balance of power between the federal government and the states.

Fear of revolt

If the president nominates Gonzales, formerly a Texas Supreme Court justice, a significant portion of Bush's base would be in open revolt. Many leading conservatives have urged him to make his choice focused on the nominee's judicial philosophy, much as he did with the selection of Roberts. Conservatives believe Gonzales is simply too liberal or unpredictable on social issues--especially for O'Connor's crucial seat.

Thompson and Miers lack judicial experience, and Miers' close personal ties to the Bush family could leave the president open to charges of cronyism, according to the sources close to the process evaluating Bush's choices.

But Sekulow said Miers' career as managing partner of a 400-lawyer firm in Texas and her leadership of a Texas lawyers group would serve her well.

"No one should discount Harriet Miers," Sekulow said. "She would be an historic pick. She was a pioneer for women lawyers and broke the ceiling for women lawyers in Texas."

Bush also is considering two federal appeals court judges, Karen Williams of South Carolina and Priscilla Owen of Texas.

Both would trigger an explosive fight in the Senate. Leading Senate Democrats have suggested they would filibuster an Owen nomination, just as they did when she was first nominated to the New Orleans-based appellate court.

Williams, on the Richmond-based appeals court, might provoke less of a fight, but she still would engender opposition. She also would disappoint conservatives hoping for a nominee of Roberts' intellectual heft.

2 back in spotlight

That has put the spotlight back on federal appeals court Judges J. Michael Luttig of Virginia and Samuel Alito of New Jersey, two highly regarded conservatives with extensive judicial experience who are very much in the mix, the sources said.

Senate Democrats would oppose Alito or Luttig, although it is unclear whether either would face a filibuster.

But nominating either man would leave the Supreme Court with only one woman and one African-American--a prospect Bush would prefer to avoid, the sources said.

Wendy Long, counsel to The Judicial Confirmation Network, which worked in support of Roberts' nomination, said, "It sounds like the president has an interesting range of candidates before him. Which one of them he'll settle on no one knows, but we do know he has promised nominees who represent his judicial philosophy like Justices [Antonin] Scalia and [Clarence] Thomas. No president in recent memory has done such a great job of choosing jurists who are faithful to the Constitution."

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Possible nominees

The White House has pared its list of Supreme Court candidates. Among the potential picks are:

Samuel Alito

Alberto Gonzales

J. Michael Luttig

Harriet Miers

Priscilla Owen

Larry Thompson

Karen Williams