Chicago Tribune - President Bush Weighs Political Pros - Cons of Justice O'Connor's Successor

September 22, 2005
By Jan Crawford Greenburg, Washington Bureau. Tribune staff reporter Jill Zuckman contributed to this report.

(WASHINGTON) - With key Democratic defections all but guaranteeing John Roberts' confirmation as chief justice, the White House now faces a complex political choice on a second Supreme Court vacancy: angering ardent supporters by nominating a moderate or igniting an all-out war over a conservative who could change the future of the high court.

In a sense, White House officials are back to square one--searching for a nominee to replace Justice Sandra Day O'Connor and seeing downsides in all of the leading contenders, according to sources close to the process.

The White House has narrowed the list of contenders to replace O'Connor to a handful, but it has yet to settle on a nominee or a strategy, the sources said.

Bush administration officials also have not definitively ruled out nominating Atty. Gen. Alberto Gonzales, despite the best efforts of conservative groups fearful he would be too liberal on social issues such as abortion and affirmative action.

Opportunity to change court

The stakes could not be higher: O'Connor provided the key fifth vote in controversial cases upholding abortion rights and affirmative action, as well as those limiting the role of religion in public life.

Her retirement gives the White House an opportunity to change the direction of a court that has disappointed conservatives in those and other areas. President Bush had chosen Roberts to do just that, nominating him in July to replace O'Connor. Roberts was widely expected to be confirmed for her seat.

But when conservative Chief Justice William Rehnquist died earlier this month, Bush immediately asked Roberts to take his place instead. From the perspective of some on the right, Bush squandered his best opportunity to replace the moderate O'Connor with a conservative without a bruising fight.

Senate Democrats strongly signaled this week they would draw the line on the O'Connor replacement. Sen. Patrick Leahy of Vermont, the senior Democrat on the Judiciary Committee, announced Wednesday that he would vote for Roberts. But he added that he would not support an effort "to move the Supreme Court and the law radically to the right."

The White House also is rethinking the O'Connor nomination while Bush is weakened politically in the wake of Hurricane Katrina.

Conservative leaders said Bush should not back down at this point, especially because he can ill afford to alienate his conservative base.

Further complicating the process is O'Connor's scheduled return in October. Her willingness to serve until her successor is confirmed robs the White House of any argument that swift confirmation is crucial to the workings of the court.

Even Judiciary Committee Chairman Arlen Specter (R-Pa.) said Wednesday that the White House should be in no hurry to replace O'Connor. He suggested waiting until June, when senators would have a better idea of the kind of justice Roberts would be, but he acknowledged that Bush would move quicker.

Majority Leader Bill Frist (R-Tenn.), who joined other Senate leaders in a meeting with Bush on Wednesday, urged the White House to act quickly so the Senate could hold hearings before Thanksgiving.

3 paths considered

The White House now is considering three paths, sources said. Each presents a different fight, and each brings different benefits.

One approach under consideration is to nominate Gonzales or former Deputy Atty. Gen. Larry Thompson, both of whom are close to Bush. Gonzales would be the first Hispanic on the Supreme Court; Thompson would be the third African-American.

Both likely would be confirmed without a Democratic filibuster, but they would engender opposition from Bush's most solid supporters, who want him to nominate a conservative with more predictable views on social issues. Moreover, Gonzales would face tough questions about his role in the war on terrorism.

The White House also could turn to a woman to replace O'Connor, the court's first female justice. First Lady Laura Bush has said she would like to see a woman take her place, but the White House has failed to identify an ideal candidate after researching dozens of possible replacements in state and federal courts across the country.

Most have a downside--some are unknown, some too unpredictable on legal issues and some too inflammatory. Still, one leading female candidate is New Orleans-based federal appeals court Judge Priscilla Owen, a former Texas Supreme Court justice who was the target of a Democratic filibuster and was only recently confirmed to the federal bench.

But Sen. Majority Leader Harry Reid (D.-Nev.) said her nomination would be a "sharp poke in the eye," as would that of Judge Janice Rogers Brown, who also was recently confirmed to the Washington-based federal appeals court after 14 senators struck a deal to end Democratic filibusters of Bush judicial nominees.

Reid has suggested either Owen or Brown would be filibustered if nominated to replace O'Connor.

Judge Edith Jones, of the New Orleans-based federal appeals court, also would likely face a filibuster. Republican sources said White House officials also worry she could lose key support from moderate Republicans because of her explicit hostility to abortion rights.

The fourth woman under consideration, Judge Karen Williams of the Richmond-based federal appeals court, is a conservative, but does not excite the base, because she is thought to lack the intellectual firepower of Roberts and others.

Those downsides could lead the White House to the third path, putting Bush's focus again on a short list of conservative white men. At the top of that list is federal appeals court Judge J. Michael Luttig, long a favorite of the conservative base with a 14-year record on the Richmond-based court and whose views on the law would be similar to those of Roberts.

Democrats would oppose Luttig's nomination, but it could be less confrontational than that of Owen or Brown or another previously filibustered nominee judge. It also would energize Republicans going into the 2006 elections and beyond.

"The president is going to pick a conservative," said Jay Sekulow, chief counsel of the American Center for Law and Justice. "They just can't figure out who that conservative is going to be."