Correction to This Article
A May 25 article on President Bush's strategy in selecting a Supreme Court nominee misspelled the name of former solicitor general Theodore B. Olson.
The High Court

Bush Expected to Push for a Conservative

By Peter Baker
Washington Post Staff Writer
Wednesday, May 25, 2005

With the Senate filibuster dispute behind it, the White House is bracing for a high-stakes battle to fill a seat on the Supreme Court that many expect to come open next month and that could help shape the remainder of President Bush's second term.

For all the appeals for bipartisan harmony, Bush is unlikely to nominate a consensus justice, and Democrats are unlikely to find his choice acceptable, current and former White House officials said. If Chief Justice William H. Rehnquist, who is ailing, retires at the end of the term as much of Washington expects, the officials said Bush is prepared to name a committed conservative regardless of Democratic opposition.

The names that Bush aides are considering for the first open Supreme Court seat in 11 years have already drawn sharp criticism from liberals, and the interest-group machinery on both sides has been mobilizing for war. By any measure, both sides forecast a titanic struggle akin to a national election campaign, a battle waged with the weapons of 21st-century politics against the backdrop of red-state-blue-state ideological division.

"We have not had a confirmation process in the modern era . . . and I think the people inside government are not fully appreciative of how different this is going to be," said Bradford A. Berenson, who served as associate White House counsel during Bush's first term. "In all imaginable scenarios, this will be a battle royale."

Advisers said neither the deal brokered by Senate centrists nor Democratic opposition would change the president's calculus in picking the next justice. "He's not going to shy away," said a senior administration official, who spoke on the condition of anonymity because no vacancy has been announced. "The Democrats can throw high and tight fastballs if they want, but it's not going to work."

Bush understands that he has the opportunity to redefine the court, particularly if two or three members of the aging bench depart in the next three years. "It's going to be one of the key legacies of this administration," the official said.

And so the White House has prepared an aggressive campaign to sell its nominee, having learned the lessons of the failed nomination of Robert H. Bork in 1987 -- when liberals shaped the battle from the beginning. "That's not going to happen again," the official said. "This White House is not going to get caught flat-footed. It's going to lay out the case from the very start."

But Bush is operating from a position of some weakness. With his approval ratings hovering in the mid-40s, the lowest of his presidency, he has struggled to find traction in the Republican Congress on his top domestic priority, restructuring Social Security. The House defied Bush's veto threat yesterday by voting to ease restrictions on stem cell research, and Congress is poised to send him a pricey highway bill over his objections. Looking ahead to a trying summer, the president cannot count on many easy wins. Even if the Senate confirms John R. Bolton as U.N. ambassador, it will have come after an ugly fight, analysts noted.

Given that, some Democrats argue that Bush would be better off compromising on a Supreme Court nominee. "I hope the president will really rise up above this debate that's been going on the last couple of months and send up to the Senate someone who won't just get five or six or seven Democratic votes but will get 35 Democratic votes," said Jack Quinn, who was White House counsel under President Bill Clinton.

Yet few Bush opponents expect him to do that. "Time and again, he's just stuck his finger in the eye of the Democrats," said Ralph G. Neas, president of the liberal People for the American Way.

The White House has been preparing for this moment almost since the instant Bush took office. Anticipating a possible high court vacancy in June 2001, a high-level working group convened to cull potential candidates and map out strategy that spring. The White House repeated the process in 2002 and 2003, but no justice stepped down.

Still, it left the president's team with a thick file on likely choices. Among those most often mentioned by insiders are Judges J. Michael Luttig and J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit; John G. Roberts of the D.C. Circuit; Michael W. McConnell of the 10th Circuit; Emilio M. Garza of the 5th Circuit; former solicitor general Theodore B. Olsen; and former deputy attorney general Larry D. Thompson. Although Bush has praised Justices Antonin Scalia and Clarence Thomas, White House advisers doubt he would elevate either to chief justice.

Age and diversity will play roles as Bush considers the list. Olsen, for instance, may be too old at 64 because the president will want someone who could be on the bench for 25 years or more, some insiders say. On the other hand, Bush would like to make history by naming a Hispanic justice, but having just installed his close adviser, Alberto R. Gonzales, as attorney general, many analysts believe this might not be the moment.

"We know that the president very deeply and very sincerely would like to appoint the court's first Hispanic," Berenson said. "That's sort of an open secret. Whether he'll do that with his first appointment, especially if it's chief justice, is hard to say."

One thing that is clear, he and others said, is that Bush will pick someone with a strong conservative judicial philosophy. And the Bush team is banking on the idea that Democrats cannot filibuster a nominee who is no more conservative than the three appellate nominees they just agreed to let come to a floor vote. "Outside of the president nominating Jack the Ripper, I don't think there's the stomach to filibuster," said Sean Rushton, executive director of the Committee for Justice, formed to support Bush judicial nominees.

Besides Bush, the key players in any choice will include Gonzales; Vice President Cheney; White House Chief of Staff Andrew H. Card Jr.; his deputy, Karl Rove; and White House counsel Harriet Miers, many of them veterans of tough fights. But no Supreme Court nomination has been fought in an era dominated by the Internet, e-mail, blogs, talk radio and multiple 24-hour cable news networks. And the fight will be new to most of the Senate as well; 56 senators have never voted on a Supreme Court nomination.

"It's going to be very, very different," said Jay Sekulow, chief counsel of the American Center for Law and Justice, a group founded by Pat Robertson to support conservative legal causes. "Both sides are better organized than ever before."


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