Friday, May 20, 2005

Preparations are already well under way within the White House to fill an expected vacancy on the Supreme Court, with at least one conservative legal organization having submitted its recommendations on who should sit on the nation’s top court.

The White House is keeping mum about the early preparations — several top administration officials will not even acknowledge that preliminary work has begun, despite the serious health issues that kept Chief Justice William H. Rehnquist, 80, off the bench for much of this year.

But others with close White House connections say a short list is well into development.

“There’s a normal process that the White House has definitely been pursuing for at least six months where they are soliciting views and recommendations,” said Samuel B. Casey, executive director of the Christian Legal Society (CLS). “We have submitted our views.”

Said one top Republican official with close ties to the White House: “The same four or five or six names keep coming up. I’m sure they have a short list already.”

Top administration and White House officials — including Attorney General Alberto R. Gonzales, Solicitor General Theodore Olson and White House Counsel Harriet Miers, President Bush’s longtime adviser and former personal lawyer — are involved in the early process, according to several sources close to the White House.

Having seen President Reagan’s ill-fated nomination of Robert H. Bork to the top court — which dragged on for months and allowed opposition to mobilize against him — the Bush administration is not uttering a word about who may be considered.

“They’re very careful at the White House, so I don’t know whose views besides ours that they’re soliciting,” Mr. Casey said.

The Christian Legal Society, he said, has “made it known to the White House who we believe are our top three most qualified candidates consistent with the president’s stated views that he is looking for judges who faithfully interpret the law, not legislate from the bench.”

Judge Michael W. McConnell on the 10th U.S. Circuit Court of Appeals is top of the list for CLS, a 42-year-old, 3,400-member nonprofit group that says its mission is “to do justice with the love of God.”

Second is Judge Edith Hollan Jones, who practiced law in Texas and now sits on the 5th U.S. Circuit Court of Appeals in New Orleans. The third candidate is Samuel Alito, a 3rd U.S. Circuit judge from Philadelphia.

The solicitation of potential names for the Supreme Court comes as the Republican-controlled Senate is locked in contentious debate over the “nuclear option,” which would ban filibusters of judicial nominees and let Republicans approve a Bush pick with a simple majority vote.

Many Supreme Court observers say the current battle will be dwarfed by what happens should Justice Rehnquist announce his retirement at the end of June, when the court finishes its session.

The last nomination by a Republican president was Justice Clarence Thomas. Liberals trying to defeat him announced public searches for anyone who could remember discussing abortion with him and delayed his confirmation with nationally televised hearings on Anita Hill’s decade-old charges of sexual harassment.

Not since 1823 has the nation gone 10 years without a vacancy on the Supreme Court — the last appointment to the high court was 11 years ago.

Actuarial tables alone suggest that Mr. Bush would be able to name at least two new justices, and perhaps as many as four.

Justice Rehnquist, 80, suffers from thyroid cancer. Justices John Paul Stevens, 85, Sandra Day O’Connor, 75, and Ruth Bader Ginsburg, 72, also have been treated for cancer. Only Justice Thomas is younger than 65.

Some court analysts see Judge McConnell, 50, as a prime candidate for the Supreme Court. He is a former law professor who was confirmed easily by the Senate in 2001 for his Circuit Court position. He stated during his confirmation hearings that while he sees flaws in Roe v. Wade, it is settled law.

David Schultz, a professor in Minnesota’s Hamline University law school and author of a new book “Encyclopedia of the Supreme Court,” also sees Judge McConnell as a front-runner.

“He’s probably the most confirmable of the names I’ve heard,” Mr. Schultz said. “He doesn’t have a lightning-bolt record. … McConnell doesn’t really have that smoking-gun decision.”

There are several others mentioned often as candidates for the high court, including:

• J. Michael Luttig of the 4th Circuit Court of Appeals, considered one of the most conservative judges on the federal bench.

• J. Harvie Wilkinson III, also on the 4th Circuit, who is considered more moderate than Judge Luttig but could be opposed by liberals over his opposition of affirmative action.

• Emilio Garza of the 5th Circuit, who would give Mr. Bush the chance to name the first Hispanic justice, but whose conservative views on abortion could prompt liberal outcry.

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