Bush’s Challenge With New Court Nominee

President Bush’s apparent intention to nominate a woman or a member of a minority group to succeed retiring Supreme Court Justice Sandra Day O’Connor could make it harder for Democrats to oppose the nominee on philosophical grounds, even if Bush chose someone they regarded as “outside the mainstream” or likely to vote to restrict abortion rights.

But much would depend on whether Bush combined a gesture toward diversity on the court with the selection of a candidate already identified by Democrats and liberal interest groups as extreme _ such as newly confirmed U.S. Court of Appeals Judges Janice Rogers Brown or Priscilla Owen. Both women were the target of Democratic filibusters in the Senate but were confirmed in July as part of a bipartisan compromise to avert the so-called “nuclear option” of a ban on filibusters of judicial nominations.

“It would be hard for the Democrats to accept even a woman nominee they had opposed for the appeals court,” said Michael Comiskey, a political scientist at Penn State University and author of “Seeking Justices: The Judging of Supreme Court Nominees.”

Paul Rosenzweig, senior legal research fellow at the Heritage Foundation think tank in Washington, agreed that, tactically speaking, Bush would do well to avoid choosing a female nominee who could be labeled as an extremist by Democrats.

“My own advice would probably be for the president to find the female equivalent of John Roberts,” Rosenzweig said, referring to Bush’s nominee for chief justice, who was approved 13-5 last week by the Senate Judiciary Committee with three Democratic votes.

“The lesson of the Roberts hearings is that if you put up a really smart conservative, at least some Democrats will vote yes.”

Rosenzweig conceded that Roberts also was helped by his lack of a “paper trail” of provocative speeches or rulings.

“Janice Rogers Brown would be a great nominee,” he said, “but if I were advising the president, she would not fit that description (of a female Roberts). He might want to consider someone like (6th U.S. Circuit Court of Appeals) Judge Alice Batchelder, who’s a really smart lady and a solid conservative.”

Batchelder is among the new names that surfaced last week in speculation about a replacement for O’Connor. Unlike Brown or Owen, she would not have to overcome a history of opposition from Senate Democrats and liberal activists.

Brown, a former California Supreme Court justice who now sits on the U.S. Court of Appeals for the District of Columbia Circuit, alienated Democrats with a series of speeches, including one that criticized “the New Deal/Great Society era.”

Owen, who recently took a seat on the New Orleans-based 5th U.S. Circuit Court of Appeals, is a former Texas Supreme Court justice who dissented from a 2000 decision by that court to allow a teenager to receive an abortion without notification of her parents. Owen was on the opposite side of that decision from Alberto Gonzales, now the U.S. attorney general and himself a possible replacement for O’Connor.

Other potential female appointees to O’Connor’s seat include Judge Edith Brown Clement of the 5th Circuit, a former federal trial judge in New Orleans whom some conservatives consider too much of a blank slate; Judge Edith Jones, also of the 5th Circuit, a favorite of religious conservatives who wrote an opinion criticizing the reasoning behind the Roe v. Wade abortion-rights decision; Judge Karen J. Williams of the Richmond, Va.-based 4th U.S. Circuit Court of Appeals; and Maureen Mahoney, a Washington attorney who, like Roberts, clerked for the late Chief Justice William Rehnquist at the Supreme Court and later served in the solicitor general’s office in the George H.W. Bush administration.

Some conservatives are wary of Mahoney because she represented the University of Michigan Law School in a landmark 2003 case in which the Supreme Court upheld the school’s affirmative-action program.

Rosenzweig dismissed such complaints as unfair.

“That’s like saying you shouldn’t nominate Roberts because he helped with Roemer v. Evans,” a 1996 Supreme Court case in which Roberts advised a law partner who represented groups challenging the constitutionality of a Colorado constitutional amendment that prohibited local gay-rights ordinances.

If Bush doesn’t nominate a woman to succeed O’Connor, he is likely to choose a Hispanic or black man, according to White House aides. Such a choice might be difficult for Democrats to oppose, as well, Comiskey said.

“I think it would be tougher for them to oppose a black or Hispanic nominee because blacks are such an important constituency for Democrats, and the Hispanic vote is up for grabs,” he said. “I think the Democrats have the support they need from women.”

In addition to Gonzales, a longtime friend of the president who is distrusted by some anti-abortion activists, Bush reportedly is considering 5th U.S. Circuit Court of Appeals Judges Emilio Garza and Edward C. Prado.

Garza, like Jones, has been critical of Roe v. Wade. In 1992, he joined in a decision striking down a Louisiana abortion law because it conflicted with Roe v. Wade, but he wrote: “The Constitution says absolutely nothing about abortion and the long standing traditions of American society have permitted abortion to be legally proscribed.”

Finally, Bush might tap a candidate who is both a woman and of Hispanic background: Judge Consuelo Callahan, a former California state judge Bush appointed in 2003 to the San Francisco-based 9th U.S. Circuit Court of Appeals. When she was nominated to the 9th Circuit, Callahan was praised by Sen. Dianne Feinstein, D-Calif., who voted against Roberts last week in the Judiciary Committee.

Two blacks figure in speculation for the appointment: former Deputy Attorney General Larry D. Thompson, now the general counsel of PepsiCo Inc., and Michigan Supreme Court Justice Robert P. Young Jr.

Thompson led the Bush administration task force on corporate fraud, which investigated Enron Corp. Young wrote the majority opinion in a 2004 decision reining in the use of eminent domain in Michigan. That might make him attractive to congressional critics of a 2005 U.S. Supreme Court decision upholding the broad use of eminent domain under the U.S. Constitution.

Although the White House has encouraged speculation that Bush would name a female or minority group member to the O’Connor seat, the president might in the end pick one of the white male judges he considered before naming Roberts.

That earlier short list included Judges J. Michael Luttig and J. Harvie Wilkinson III of the 4th U.S. Circuit Court of Appeals; Samuel R. Alito of the 3rd U.S. Circuit Court of Appeals; and Michael McConnell of the 10th U.S. Circuit Court of Appeals.

(Michael McGough can be reached at mmcgough(at)nationalpress.com.)