Faced with a chorus of social conservative opposition and Republican Senate doubts, Harriet Miers ended her Supreme Court candidacy and handed President Bush a dilemma in making a new choice to replace Sandra Day O’Connor.
Bush must decide if he will give veto power to “movement” conservatives who campaigned against Miers as soon as Bush announced her selection Oct. 3.
Or Bush could choose a consensus candidate in the mold of Chief Justice John Roberts, a conservative whose stellar credentials won bipartisan approval when Bush tapped him for chief justice after William Rehnquist’s death.
Either way, the immediate impact is twofold:
_ The new nominee is unlikely to win Senate confirmation this year.
_ O’Connor will stay on the court and be there Nov. 30 when the justices hear their first case in five years on how far states can go to restrict abortion. In that case from New Hampshire, the court will consider whether women of any age must go to court one by one to challenge abortion restrictions.
O’Connor was the architect of a 1992 high-court compromise that prohibits government abortion restrictions that place an “undue burden” on women. She also provided the fifth and deciding vote in a 2000 case that further limited state restrictions.
If Miers had been confirmed by the Senate in time to hear the New Hampshire case, she would have been considered the pivotal vote.
Miers withdrew after Senate leaders, dissatisfied with her incomplete answers to their written questionnaire, told her to redo it. The revised version was due Wednesday night, but Miers told Bush then she’d drop out instead.
Senate Judiciary Chairman Arlen Specter, R-Pa., also wrote Miers to expect detailed questioning about how, as a judge, she would view war-making powers, including a president’s power to indefinitely detain citizens in the war on terror.
Miers’ withdrawal letter invoked the need for “protection of the prerogatives of the Executive Branch” in light of Senate plans “to seek documents about my service in the White House in order to judge my candidacy.”
By that reasoning, Attorney General Alberto Gonzales _ Miers’ White House counsel predecessor _ could not go through the Senate confirmation process as the next nominee to replace O’Connor.
In addition, Gonzales would likely be unacceptable to social conservatives. Like Miers, he is considered an “unknown” on striking down Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide. And like Miers, Gonzales is viewed as a “stealth” candidate akin to David Souter, the first President Bush’s 1990 Supreme Court nominee who upheld abortion rights.
Calls for Bush to name a female John Roberts prompted court watchers to propose Maureen Mahoney as a possible successor to O’Connor. Like Roberts, she is a child of Indiana, former Rehnquist law clerk, former assistant solicitor general and leading Supreme Court advocate whose nomination for the federal bench died in 1992 when the senior Bush lost re-election.
Former Deputy Attorney General Larry Thompson, the PepsiCo counsel who recently left the current Bush administration, also draws favorable mention.
Otherwise, Bush’s list likely will focus on these federal appeals court judges:
SAMUEL ALITO JR. of the 3rd U.S. Circuit Court of Appeals. A Princeton and Yale Law School graduate, this former Justice Department lawyer quickly earned the nickname of “Scalito” because of conservative views considered akin to Justice Antonin Scalia.
JANICE ROGERS BROWN of the U.S. Circuit Court of Appeals for the District of Columbia. The child of Alabama sharecroppers, this Cal State and UCLA law school grad was the first black woman on the California Supreme Court. Her views on New Deal “socialism” and “war with secular humanists” make her a Supreme Court lightning rod.
CONSUELO CALLAHAN of the 9th Circuit. A graduate of Stanford and McGeorge School of Law, Callahan won high marks from Democrats and Republicans when Bush named the former California prosecutor and state judge to the appeals court in 2003. A Hispanic woman, Callahan was a runner-up when Bush chose Miers.
EDITH BROWN CLEMENT of the 5th Circuit. A University of Alabama and Tulane grad, she’s been a judge since the elder Bush tapped her in 1991. A by-the-book conservative and “prosecution-oriented” judge, she’s no darling of the right: She hasn’t drawn hot-button cases on school prayer, abortion and the like that are 5th Circuit fare.
EMILIO GARZA of the 5th Circuit. This Texan’s selection would let Bush fulfill his promise to name the first Hispanic justice. A Notre Dame and University of Texas Law School grad, Garza isn’t a lightning rod after 17 years on the bench, but he has questioned if the Supreme Court still thinks “abortion is a ‘fundamental right.’ ”
EDITH HOLLAN JONES of the 5th Circuit. A Cornell and University of Texas grad, Jones has a controversial judicial paper trail that dates to 1985 and that got the first Bush to choose Souter for Supreme Court instead. Her opinions attacking abortion and refusing retrial of a death-row inmate whose lawyer slept through the case spell confirmation woe.
MICHAEL LUTTIG of the 4th Circuit. A Texan and product of Washington & Lee and University of Virginia, Luttig clerked for Scalia and Chief Justice Warren Burger. A 4th Circuit decision upholding a president’s power to designate an “enemy combatant” is a clue: Luttig dissented: He’d give a president almost unfettered power.
MICHAEL McCONNELL of the 10th Circuit. A Kentucky native and Michigan State and University of Chicago grad, he made his name as a conservative constitutional scholar, abortion critic and church-state expert at Chicago and Utah. Academics across the spectrum supported his appeals court appointment despite liberal complaints.
PRISCILLA OWEN. Another 5th Circuit Texan. Bush’s five-year attempt to put this Baylor grad and Texas Supreme Court justice finally succeeded earlier this year. A favorite of abortion opponents for opinions attacking Roe v. Wade, Owen would face a contentious confirmation that could lengthen O’Connor’s Supreme Court stay.
DIANE SYKES of the7th Circuit. Bush nominated this ex-Milwaukee Journal reporter turned Wisconsin Supreme Court justice to the federal bench in 2003. A graduate of Northwestern and Marquette law school, Sykes enjoyed bipartisan support for Senate confirmation and is backed by House Judiciary Chairman James Sensenbrenner, R-Wis.
KAREN WILLIAMS of the 4th Circuit. A Columbia College and South Carolina grad, Williams is a solid conservative with no abortion record She voted to deny alleged 20th hijacker Zacharias Moussaoui the right to call witnesses on grounds it would prevent “the executive from accomplishing its war-making, military and foreign affairs duties.”
(Contact Mary Deibel at DeibelM(at)shns.com)