Dallas Morning News - Focus Now on President Bush to Nominate Replacement for Justice O'Connor

July 4, 2005
by DAVID JACKSON, Washington Bureau

WASHINGTON - Selecting a new Supreme Court justice may put President Bush between a conservative rock and a political hard place.

The president's conservative backers have made clear they see Justice Sandra Day O'Connor's departure as a chance to turn the court decisively to the right - and some have made equally clear that at least one potential candidate, Attorney General Al Gonzales, doesn't fit that vision.

A very conservative nominee, meanwhile, might set up a lengthy and difficult Senate fight, not necessarily a good thing for a president whose approval ratings have taken a hit over Iraq and Social Security.

On the other hand, a "confirmable" moderate could alienate Mr. Bush's conservative base.

"It does put a lot of pressure on him," said Robert Dallek, biographer of Presidents Lyndon Johnson and John Kennedy. "It is a big moment for his presidency."

To be sure, there is also political pressure down the line for Senate Democrats. Filibustering or otherwise delaying a vote on a Supreme Court nominee might not sit well with voters, who are also giving low ratings to Congress and both political parties.

It's up to Mr. Bush to make the first move, exercising a presidential power that can long outlive any individual term in office. The current court includes members going back to the Nixon administration.

White House officials said Mr. Bush would take a deliberative approach, including consultations with Senate Democrats to begin after he returns from this week's trip to Europe.

"The president is going to appoint someone who will interpret the law and not try to legislate from the bench," said White House press secretary Scott McClellan.

Getting such a person nominated and confirmed will require Mr. Bush to navigate many political crosswinds.

Some interest groups are lobbying for a woman to replace Justice O'Connor, the first female member of the high court. Two of the names discussed, appeals court Judges Edith Brown Clement and Edith Jones, are conservatives who would probably face opposition from liberal interest groups.

First Hispanic?

Mr. Bush is believed to be interested in appointing the court's first Hispanic member; thus, the interest in Mr. Gonzales.

Anti-abortion conservatives criticize Mr. Gonzales' rulings on a parental notification law while a member of the Texas Supreme Court. The critics also noted that the former White House counsel has spoken sympathetically about affirmative action.

William Kristol, editor of the influential conservative magazine The Weekly Standard, wrote this week: "It's simply a fact that Gonzales does not have the stature of several other possible candidates."

In an interview with The Washington Post on his way to Baghdad, Iraq, for a Sunday visit, Mr. Gonzales said he would continue to be directly involved in making recommendations to President Bush for a court nominee. But he declined to comment on his own chances or interest.

"There will be a group of people who will share their thoughts with the president about a nominee, and obviously I am part of those discussions," Mr. Gonzales said. "But I'm not going to talk about the details of those discussions or the recommendations or anything like that. ... I think the president is going to be deliberative in his decision."

Although Mr. Bush may "take some time" to make a final call, Mr. Gonzales said, the president is adamant that a new justice be confirmed by October.

Senators from both parties caught in the expected political crossfire are sure to be targeted by outside groups planning to spend millions on ads. As with last year's presidential campaign, these groups will target certain states, particularly those with senators considered ideological moderates.

Past fight

The Supreme Court opening comes less than two months after the Senate nearly broke down over an impasse over Mr. Bush's nominees to appeals courts.

As Democrats blocked a number of the most conservative candidates, Republicans threatened to change Senate rules and forbid filibusters on judicial nominees.

Fourteen Republicans and Democrats split off to approve a compromise that preserved the filibuster while allowing votes on many of the contested nominees, such as appeals Judge Janice Rogers Brown, another Supreme Court possibility.

Democrats said they would reserve the filibuster for "extraordinary circumstances," and many indicated a Supreme Court vacancy could easily qualify.

Appearing Sunday on CBS' Face The Nation, Sen. Joe Biden, D-Del., initially said that if Mr. Bush nominates Judge Jones, a Houston-based federal appeals judge, "I could assure you that would be a very, very, very difficult fight, and she probably would be filibustered."

Mr. Biden later said that he misspoke, and that "Janice Rogers Brown is what I meant to say."

Jay Sekulow, chief counsel for the anti-abortion American Center For Law and Justice, said on the same program that Mr. Bush ran two campaigns promising to appoint conservative jurists.

"This idea that we've got to have a consensus candidate, I think, is ridiculous," Mr. Sekulow said. "The president has the authority; the Senate can say yes or no."