William H. Rehnquist’s plan to stay on as chief justice clears the way for President Bush to make a swift decision to replace retiring Sandra Day O’Connor. Liberals and conservatives have different ideas about whom that might boost, but they agree Bush will try to move the court to the right.
Some conservatives say Rehnquist’s decision changes little and that the president is under pressure to nominate a woman or minority for O’Connor’s seat. Liberals say that with just one vacancy, Bush will feel heat from his right-wing base to nominate a hard-line conservative, man or woman.
The White House isn’t saying when Bush will decide, but court watchers expect it before the end of the month, just as Congress begins its August recess.
Before the 80-year-old Rehnquist, who is battling cancer, announced on Thursday that he was staying, there was speculation that Bush was waiting to make a double-nomination _ a conservative and someone more moderate _ that could defuse a contentious confirmation battle.
“With two, he could have made an effort to please everybody,” said Nan Aron with the liberal Alliance for Justice. “For this one vacancy, not only does it cause the White House to speed up the process, but there’s that much more pressure being exerted on them by radical right groups. They’re under much more pressure to placate their radical right base.”
With prospects for a double-vacancy off the table, Bush is faced only with replacing O’Connor, a moderate conservative who sided with liberal jurists in some of the Supreme Court’s critical 5-4 decisions.
Bush might heed the advice of wife Laura who has nudged him to replace O’Connor with another woman. Still, conservatives argue that the selection process at the White House has changed little with Rehnquist’s decision.
“The only thing that’s different from a month ago is that Justice O’Connor resigned, and no one else has,” said Wendy Long, a counsel for the conservative Judicial Confirmation Network. “She’s a woman, and she’s the only one who has resigned.”
Bush has pledged to nominate someone, like justices Antonin Scalia and Clarence Thomas, who believes the Supreme Court should not be swayed by cultural and social trends.
“The president’s promise about the kind of justice he will appoint, and his track record of picking outstanding female jurists like Janice Rogers Brown and Priscilla Owen, has not changed,” Long said about the two nominees who were filibustered by Democrats and only recently confirmed to federal appellate posts.
Ralph Neas with the liberal People for the American Way said it was unclear how much Bush believes he owes to conservative voters who helped his re-election.
“They expect that he will fulfill his pledge to nominate someone like Thomas or Scalia,” Neas said. “They’ve made it crystal clear that they won’t accept anything less. So it probably makes it more likely that it will be someone in the mode of Thomas and Scalia. We’ll have to oppose such a nominee, but we hope it doesn’t happen.”
One potential nominee, Attorney General Alberto Gonzales, a loyal friend of the president and a Hispanic, has been opposed by some conservatives who believe he is not far enough to the right on issues involving abortion and affirmative action.
Choosing Gonzales would allow Bush to fulfill his desire to appoint the first Hispanic to the court. But there are other Hispanics who have been mentioned.
Overall, the candidates mentioned most often are federal appeals court judges: Samuel Alito, Emilio Garza, J. Michael Juttig, John Roberts Jr., Michael McConnell and J. Harvie Wilkinson III. But as Bush nears his decision, the list of candidates is growing, at least in public speculation.
Lawmakers have lobbed scores of new names into the mix _ more Hispanics, more women and more people who have never donned a judicial robe.
Besides Owen and Brown, female jurists frequently mentioned are Edith Hollan Jones and Edith Clement, who both serve on the 5th U.S. Circuit Court of Appeals in New Orleans.
Other female judges include Alice M. Batchelder of the 6th U.S. Circuit Court of Appeals in Cincinnati; Deborah Cook, a former Ohio Supreme Court judge whom the president appointed to the 6th Circuit; Deanell Reece Tacha of the 10th U.S. Circuit Court of Appeals in Denver; Karen Williams from the 4th U.S. Circuit Court of Appeals in Richmond, Va., and Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals in New York.
The names of dozens of people outside the judiciary also have been floated as candidates: One person said to be a serious contender is Larry Thompson, counsel at PepsiCo and former deputy attorney general during Bush’s first term. Thompson, who was the highest-ranking black law enforcement official in the federal government, is a longtime friend of justice Thomas.
On the list of other possible contenders are several senators: Lindsey Graham of South Carolina, Michael Crapo of Idaho, Kay Bailey Hutchison of Texas, Judd Gregg of New Hampshire, Mel Martinez of Florida, John Cornyn of Texas and Mike DeWine of Ohio.
Still others include former Solicitor General Ted Olson; former Tennessee Sen. Fred Thompson, who has been assigned to guide Bush’s nominee through confirmation hearings, and Miguel Estrada, a Hispanic lawyer who withdrew his appeals court nomination after it was blocked by Democrats during Bush’s first term.