Possible Court Nominees

WaPo reported President Bush's advisers are focusing their search for a new Supreme Court justice on a trio of candidates who could present the president with a choice that would help shape his legacy -- pick a reliable conservative to anchor the court for decades or go for history by naming the first Hispanic chief justice at the risk of alienating his base... Bush and his inner circle have had tightly held deliberations and no one can say for sure whom he might pick for chief justice, but outside advisers to the White House believe the main candidates are federal appeals Judges John G. Roberts and J. Michael Luttig and possibly Attorney General Alberto R. Gonzales. For a time, many officials and analysts in Washington assumed that Gonzales, a longtime Bush confidant and his first-term White House counsel, had been ruled out as a candidate because he took over the Justice Department in February. But in recent days, several advisers with close ties to the White House said Bush appears to be considering Gonzales, after all. If so, it sets up a delicate conundrum for Bush. A Gonzales appointment would be a politically appealing "first" that could ease the confirmation process among Democrats and help expand the Republican base, according to some strategists. But many conservative leaders see him as too moderate on issues such as abortion and affirmative action, and a Gonzales-for-Rehnquist trade would effectively move the court somewhat to the left.

It depends on who leaves first. If it is Renqhist, as is most probable, then he needs a strong conservative, but if it is Sandra Day O'Conner or John Paul Stevens, then Gonzales would be an ideal choice.

"He's clearly in the running," said one adviser who, like others, shared insights on the condition of anonymity to preserve relations with the White House. "And that's an easy confirmation -- that's the easy confirmation." While most Senate Democrats opposed Gonzales's confirmation as attorney general because of his involvement in setting guidelines for interrogations of detainees, he did get 60 votes, just enough to beat a filibuster. And the adviser said the White House senses that Democrats would not wage an all-out fight against his elevation to the court. "They've had their say on that," the adviser said. Yet a Gonzales nomination could trigger internal dissension among GOP activists, some of whom have warned the White House against naming the attorney general. At a meeting of conservative groups last week to plot strategy for a possible Supreme Court nomination, one leader spoke out against a Gonzales appointment, according to people in the room. "Some of the groups share that concern," said Jan LaRue, chief counsel for the Concerned Women for America, who attended the session. While she noted that her organization has not taken a position, she predicted that if Gonzales is chosen, some activists "may not as vigorously support" the nomination, while Roberts or Luttig "would certainly have broader support across the coalition of conservatives." "Everyone in my circle crinkles their nose when his name comes up," another activist said of Gonzales. "It would be a disaster if that happened." On abortion, the most volatile test issue for both sides in any Supreme Court fight, Gonzales has offered only certain clues. Conservative activists complain he was not vigorous enough in enforcing a Texas law requiring parental consent before minors could obtain abortions when he was a state Supreme Court justice. On several occasions, he has said he recognizes that the Roe v. Wade decision legalizing abortion is "the law of the land," while once telling an interviewer that "how I feel about it personally may differ with how I feel about it legally." Whether there will be a vacancy to fill remains uncertain. Rehnquist, 80, suffers from thyroid cancer and has appeared frail in recent months; some former clerks at an annual reunion this month told friends they were dismayed at his condition. Yet Rehnquist, a practiced poker player, has given no known hints to his plans, and some administration officials lately have speculated that he may want to hang on through the summer recess and evaluate his health in September after his current round of treatment.

Joe Gandelman blogged The Washington Post reports that President George Bush's advisors now pondering a possible Supreme Court Justice nomination may have to decide between picking a conservative (which pleases conservatives) or a Hispanic nominee high on his preferred list (which would upset conservatives, perhaps be a bit more acceptable to Democrats and make history). If this White House's track record is any indication: Gonzales won't be the choice. Its history so far is to opt for decisions that solidify rather than expand the Republican party's base. But, heading towards the latter part of his final term, could GWB be thinking a bit more now towards his legacy? If you read Democratic political websites, letters to the editor, etc. Gonzales has been indeed lambasted by Democrats. But he also seems like a nominee that could squeek through, depending partially on his job performance in his present job.

James Joyner blogged Gonzales makes no sense as a Chief Justice appointment. He's the worst of all worlds: a bruising confirmation battle plus a weakening of Bush's ideological position on the Court. Rehnquist's replacement would ideally be Antonin Scalia or Clarence Thomas, a known quantity who, while controversial, would ultimately win and guide the Court in the right direction. Failing that, a younger conservative judge from one of the Circuit Courts of Appeal makes sense. If Bush is set on appointing Gonzales, it would be more appropriate to wait for the retirement of Sandra Day O'Connor or John Paul Stevens. While they're both Republican appointees, they're both significantly to the left of Rehnquist. Putting Gonzales into one of those slots, especially Stevens', would be an upgrade. Tactically, too, it would make more sense. The Democrats are likely to fight much harder against a very conservative appointee replacing a more liberal justice. Further, an additional year or two would give Gonzales time to re-establish his reputation by good work in his current office, moving his rather minimal associaton with Gitmo further into the background.

Orin Kerr blogged It's hard to know what to make of views expressed by unnamed oustide advisers, of course, but it's interesting nonetheless.