As President Bush weighs viable candidates for a second Supreme Court vacancy, Republican allies close to the process agree on one thing: Expect the unexpected selection.
Top Republicans say liberals are playing politics by warning that a fierce Senate fight will erupt if the president nominates a conservative to replace the high court’s moderate female, and that Mr. Bush won’t be pigeonholed by Washington pundits’ calls for a woman or a Hispanic.
“The idea that he has to move left is a ludicrous, inside-the-Beltway type of thinking, coming from people who want to do him harm,” said Gary Bauer, chairman of the Campaign for Working Families. “I’m confident the administration will ignore that advice.”
“Nobody ever contemplated that Bill Clinton, with all of his troubles, would be expected to nominate a conservative. The unspoken message here is that the left is telling the president that you have no right to make the court more conservative, only liberal presidents have the right to make the court more liberal,” he said.
Still, Democrats and liberals, frustrated by what they say was Judge John G. Roberts Jr.’s proclivity to evade tough questions during 20 hours of Senate hearings on his nomination to replace Chief Justice William H. Rehnquist, are advising the president to nominate a moderate to avoid a battle in the Senate.
Some Republicans close to the White House say top Bush aides are looking mainly at female jurists to fill Justice Sandra Day O’Connor’s seat. Democrats vow a fight if Mr. Bush nominates a hard-core conservative.
But GOP strategist Charlie Black said the threat does not send shivers down the president’s spine.
“It’s naive all of a sudden to say that the White House just realized that there’s going to be a tough confirmation fight in the Senate,” Mr. Black said. “Of course there’s pressure from both sides, but he’s not going to cave to pressure from the left or the right.”
Mr. Bush will feel some of that pressure today when he meets at the White House with top senators from both parties about who should be picked for the lifetime appointment.
Republicans note that Democrats advised the president in July to chose a moderate or a woman — or both — to replace Justice O’Connor, but he instead chose a white, male conservative.
Mr. Black acknowledged that “there’s only a handful of people who know” the president’s top candidates. Two conservatives in legal organizations say top Bush aides are interviewing new prospects.
Some prominent candidates, however, made it into the final stages of the last search and are considered front-runners this time around. Judges Edith H. Jones and Edith Brown Clement, both of the Fifth Circuit in New Orleans, were on the shortlist. Also at the top of the list is Attorney General Alberto R. Gonzales, who irks Democrats and conservatives alike but is known as a loyal friend of the president.
“If the president decides he would be the best choice, he’s going to pick him. That’s it,” Mr. Black said. If that occurs, he would be the first Hispanic on the high court.
A new name has emerged on the longer list of candidates — Judge Consuelo M. Callahan of the Ninth Circuit, the liberal San Francisco court, one of whose judges recently ruled that the phrase “under God” in the Pledge of Allegiance violates the Constitution.
“That would kill two birds with one stone,” said David Schultz, a professor at Minnesota’s Hamline University law school and author of a new book, “The Encyclopedia of the Supreme Court.”
Democrats, he said, “would have a hard time opposing a Hispanic woman,” and Mr. Bush already knows her: He appointed her to the federal bench in 2003.
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