Possible nominees to the Supreme Court

July 03, 2005

The White House has been quiet about whom President Bush might nominate to succeed Justice Sandra Day O'Connor on the Supreme Court, but legal analysts and court watchers say it is likely that the candidate will be chosen from a short list of federal appeals court judges, with a few exceptions.

Michael J. Luttig

Age: 51.

School: University of Virginia School of Law.

Clerked for: Then-Judge Antonin Scalia, Chief Justice Warren E. Burger.

Was: White House assistant counsel for Ronald Reagan and in the Justice Department during the administration of George H.W. Bush.

Now: Judge on the U.S. Court of Appeals for the 4th Circuit (appointed 1991).

Michael J. Luttig, a 51-year-old Texas native, came to Virginia in 1972 to attend Washington and Lee University and never left. He went to the University of Virginia law school and spent most of his legal career at the Justice Department before he was appointed to the 4th Circuit Court of Appeals in 1991 by the first President Bush.

Luttig was mentored early in his career by Chief Justice Warren Burger and is known for being networked into the Supreme Court, so much so that when the man who had murdered Luttig's father during a 1994 carjacking in Texas went before the court in 2001, Justices Scalia, Thomas and Souter all recused themselves. Luttig once clerked for Scalia and helped shepherd Thomas' and Souter's nominations through the confirmation process while at the Justice Department. The appeal of the killer was denied, and he was executed.

Though considered a very conservative thinker, Luttig's intellectual rigor often leads him away from doctrinaire positions. For instance, though he had voted to uphold Virginia's ban on "partial-birth" abortions before, after the Supreme Court ruled on the issue, Luttig wrote in 2000 that the state law must be struck down, citing the need to follow precedent. And he dissented in an opinion that gave immunity to a Prince George's County police officer from a civil rights lawsuit, writing forcefully that the officer should not need a court opinion to know that handcuffing a suspect to a light pole in a deserted shopping center at 3 a.m. "for no law enforcement purpose at all is unconstitutional."

In a concurring opinion in a 2001 case called Safety-Kleen v. Wyche - which hinged on technical arguments about issuing preliminary injunctions - Luttig criticized judges who easily ignore both the plight of those before the court and Supreme Court precedents, writing that "these reasons of ease and of defeat of accountability should be discomforting to those who believe that the judiciary, before all others, should be both intellectually rigorous and fully accountable to the public we serve. For at the end of the day, other than conscience, it is only analytical rigor, and the accountability that such renders possible, that can restrain a judiciary that serves for life and at the pleasure of no one."

Emilio Garza

Age: 58.

School: University of Texas School of Law.

Was: Marine captain, a Texas trial judge, a U.S. district judge in the Western District of Texas.

Now: Judge on the U.S. Court of Appeals for the 5th Circuit (appointed 1991).

Emilio Garza came close to the Supreme Court once before. The first President Bush interviewed him extensively in 1991 after Thurgood Marshall retired but ended up picking Clarence Thomas. At the time, Garza had spent only a few months on the 5th Circuit Court of Appeals. He had been a District Court judge for three years before that.

Now there would be no question of experience; Garza has spent more than a decade on the 5th Circuit, compiling a generally conservative record, though his upholding of Supreme Court precedents supporting abortion rights could give pause to the socially conservative right.

A 58-year-old native of San Antonio, Garza is a former Marine captain who graduated from Notre Dame University and the University of Texas law school. He was in private practice when President Reagan put him on the District Court to take the seat vacated in 1988 by William Sessions, who resigned to head the FBI. At the time, he was the youngest district court judge in the country.

Three years later, in his confirmation hearings for the appellate seat, Garza denounced legislating from the bench, saying, "I think it's our responsibility to provide a level playing field . . . and apply the law. We're not elected to be legislators."

John Roberts

Age: 50.

School: Harvard Law School.

Clerked for: Judge Henry Friendly, Chief Justice William H. Rehnquist.

Was: Associate counsel to the president for Ronald Reagan, deputy solicitor general for George H.W. Bush, partner at Hogan & Hartson.

Now: A judge on the U.S. Court of Appeals for the D.C. Circuit (appointed 2003).

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