Bush's second chance

Woman or minority likely to replace O'Connor, strategists predict

September 21, 2005|By Julie Hirschfeld Davis | Julie Hirschfeld Davis,Sun reporter

WASHINGTON -- President Bush, facing high political stakes and growing pressure from all sides over replacing Justice Sandra Day O'Connor, is considering a number of women and minority judges to fill her seat, say activists and political strategists.

Replacing O'Connor, the court's first woman and a pivotal vote on key issues, is expected to provoke a more contentious fight than Bush's pick of Judge John G. Roberts Jr. to be the next chief justice. Congressional leaders are to meet with Bush today to discuss filling the second Supreme Court vacancy.

Democratic leader Harry Reid of Nevada, who announced his opposition to Roberts yesterday, promised fierce opposition to at least two of the judges Bush is said to be considering: appellate Judges Janice Rogers Brown and Priscilla Owen. Both were blocked by Democrats before being confirmed this year as part of a deal to avert a parliamentary meltdown.

With liberals frustrated over Roberts' refusal to testify more openly about his views at last week's hearings, some White House aides and Republican lawmakers believe O'Connor's replacement will face more withering scrutiny from Democrats, given the significance of the seat that is being filled.

Bush's low poll numbers and his political problems in the wake of Hurricane Katrina have steered speculation about his next pick toward judges who would fulfill the president's stated intention to consider "people from all walks of life" for the court, while potentially ruling out more hard-line jurists who might alienate moderate senators in both parties.

Brown and Owen are said to be under serious consideration, as are other strong conservatives such as J. Michael Luttig and J. Harvie Wilkinson III, both of the Richmond, Va.-based 4th Circuit Court of Appeals. But some strategists and analysts say Bush may decide to pick a more obscure jurist who might be seen as less divisive and a more appropriate replacement for the retiring O'Connor, a moderate conservative.

"Bush may be aiming now for the political choice - a choice that's calculated less to mold the Supreme Court jurisprudence, and more to mold his political fortunes and those of his party," said Bruce Fein, a Justice Department official in Ronald Reagan's administration.

Attorney General Alberto R. Gonzales, a former Texas justice who is close to Bush and would be the first Hispanic on the Supreme Court, might be such a choice. Appellate Judge Edith H. Jones might fit the category, as could Larry Thompson, a former Bush Justice Department official who is black. Consuelo M. Callahan, who sits on the San Francisco-based 9th Circuit appeals court and is Hispanic, also is regarded as a less controversial pick.

Conservative groups, particularly Christian organizations that make up a key part of Bush's base, are pressuring Bush not to temper his desire for a solid ideological conservative in the face of political considerations.

Roberts was a natural successor to his mentor, the late Chief Justice William H. Rehnquist, said Tony Perkins, president of the Family Research Council, but conservatives are still waiting for Bush to fulfill his promise to choose a justice in the mold of Antonin Scalia and Clarence Thomas.

"This is the nomination that changes the balance of the court, moving away from an activist court, and you need someone who's going to be strong in that regard," Perkins said. "There's no question there's going to be a battle unless [Bush] turns his back on everything he's said he's going to do and his legacy."

Liberals are urging Bush to find a centrist who would follow O'Connor's example, though the president has given no indication that he would seriously consider their advice.

"The Senate will not rubber-stamp a nominee who has not demonstrated a commitment to upholding privacy, civil rights, women's rights, reproductive choice and the role of the courts in protecting them," said Ralph Neas, president of the liberal People for the American Way. He said Bush should "select a mainstream nominee who can earn broad bipartisan support."

For now, Democrats are not threatening a filibuster of any forthcoming nominee, but Reid said Bush should not take anything for granted, despite the relatively smooth ride for Roberts, who is expected to be confirmed by the Senate this month.

Bush's allies said that, in choosing a nominee, the president shouldn't shrink from a fierce battle.

"It gets messy - this is going to be a big fight," said Sean Rushton of the Committee for Justice, a pro-Bush organization. "So our position is, let's put forward someone worth fighting for."


Sun reporter Gwyneth K. Shaw contributed to this article.

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