Newsweek - The Battle Over a Supreme Court Nominee Begins

July 11, 2005

by Howard Fineman and Debra Rosenberg
Newsweek

July 11 issue - As soon as president George W. Bush officially got the newsJustice Sandra Day O'Connor was retiringhe huddled with his innermost circle. He wanted to give them the word and review the game plan now that he would be choosing a nominee to the U.S. Supreme Court. As staffers filed into the Oval Office for the regular 9 a.m. meeting last Friday, Bush ushered Vice President Dick Cheney and counselors Karl Rove and Dan Bartlett into the adjacent dining area. A smoothly run vetting process mattered, the president said, but not as much as the identity and history of the person he ultimately selects. "A lot of people are going to be focused on the process," he said, "but when I make the candidate selection, the focus will be on the candidate."

Bush was half right: the focus, in fact, is squarely on him, too. Presidencies are defined by key moments. So far, his are the Bullhorn of 9/11 and the decision to go to war in Iraq. Now comes the next Big Call. Having risen to power as a committed conservative, and having largely governed as one, he must choose: big tent or revival tent? On Capitol Hill, and around Washington, the assumption is that, on a personal level, Bush favors Attorney General Alberto Gonzales. He is a longtime Texas compadre who would, if confirmed, be the court's first Latino at a time when wooing Hispanics is a Republican Party priority. But Gonzales is considered suspect by pro-life forces and has a thin, hard-to-pin-down track record as a Texas judge. In fact, he is the only A-list contender whom religious conservatives pledge, upfront, to fight. "We'd oppose him," said Tom Minnery of Dr. James Dobson's Focus on the Family.

Bush's political dilemma is tougher than the one his aides until quite recently had been planning for. For months, if not years, the theory was that Chief Justice William Rehnquist, now 80 years old and infirm, would be the first justice to leave the Bush-era court. But O'Connor's departure raises the already astronomical stakes even higher. Conservatives see a chance to turn the court farther right; liberals and Democrats insist the president is duty-bound to pick another comparative centrist, and predict constitutional doom if he doesn't. "This is probably the most significant Supreme Court resignation and nomination we'll see in our lifetimes," said Jay Sekulow, counsel of the conservative American Center for Law and Justice. His counterpart at the liberal Alliance for Justice agreed. "The stakes are now enormous," said Nan Aron.

But all-out war probably was inevitable in any case. In our law-obsessed country, we're always arguing about the meaning (or existence) of constitutional rights; the courts are a form of precinct politics with footnotes attached. But battles over court nominations have become more heated as emotional issues such as abortion move to center stage. In 1987, the Reagan White House was blindsided by the ferocity of the cultural attacks on Judge Robert Bork; four years later Clarence Thomas was able to survive by denouncing the "high-tech lynching" he claimed he was facing.

And that was child's play, political pat-a-cake in the innocent days before the advent of war rooms, the Internet, a brace of cable news channels, talk radio and deep-pocketed advocacy groups. The armies of Red and Blue have been wheeling their catapults into place for a long time. Progress for America, an ally of the Bush White House, launched an ad campaign in June on cable TV, demanding that there be an up or down vote on Bush's choice. The group plans to spend at least $18 million on the battle. On the left, the MoveOn PAC is on the move, already advertising in key states, earnestly asking the question: "Will George Bush pick an extremist who will threaten our rights?" Within the putatively collegial Senate, no one wasted much time pledging bipartisan good will. In the olden days, the notion of blocking a court choice by talking it to death was largely beyond the pale. No more. Democrats who threatened to do just that to Bush appellate-court choices did not rule out doing so now once they see whom Bush picks.

So who will it be? Two weeks ago, as rumors began to spread that O'Connor might depart, Bush aides and allies stepped up inquiries about female candidates, in case he decided he needed to select a woman to replace a woman. The list now is said to include four female appellate-court judges. If Bush is looking for a Hispanic other than Gonzales, he could turn to Emilio Garza of the Fifth Circuit. If gender balance or ethnicity isn't a concern, there's a long list of "heavy" white male conservative judges.

To those on the religious right, anyone on the list would be preferable to Gonzales, whom they regard as a chilling reincarnation of David Souter, Bush One's moderate pick in 1990. Choosing the attorney general might well doom GOP Senate incumbents, they say, by infuriating the party's fervent, evangelical grass roots. "If the president is foolish enough to nominate Al Gonzales, what he will find is a divided base that will take it out on candidates in 2006," said Manuel Miranda, who heads a coalition of conservative groups called Third Branch Conference. A former legal counsel to Senate Majority Leader Bill Frist, Miranda went on to threaten retribution against First Brother, should he decide to run for president. "We're not Republican patsies," he said. "Jeb Bush can go sell insurance."

Knowing the historyit was, after all, his hero Reagan who chose Bork and Bush the First who chose Thomasthe president has insisted that his team be battle-ready at all times for a Supreme Court fight. Some advisers suggested that he put off naming his choice until late August, so that critics would have less time to chew overand chew uphis nominee. But the president and his aides believe that they have learned the lessons of the past, and that the outside network they have established will withstand whatever assault the Blue Team can mount. The White House planned to announce his pick as soon as the end of this week.

Indeed, Bush may still be preparing for more than one fightin the still-live possibility that Rehnquist steps down later this summer. In that scenario, the president could nominate Gonzales and a "heavy" conservative. As he prepared to fly off to the G8 summit in Scotland, Bush took along briefing books about the shortlist candidates, none of whom he has formally interviewed. He planned to read them on Air Force One. If this were Texas Hold 'Em, the face-up cards wouldn't look that promising: a politically fractious country, a poisonous Senate, even a restive right. But only Bush knew what cards were in his own hand, and he wasn't about to show them just yet.