Possible Court Nominees Pose a Quandary for Bush

By Peter Baker
Washington Post Staff Writer
Sunday, June 19, 2005

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.

While the cancer-stricken Chief Justice William H. Rehnquist has not publicly signaled his decision, many in the White House and around Washington expect him to announce his retirement at the end of the court's current term next week, opening the nation's top judicial post for the first time in 19 years and setting up a potentially savage nomination battle.

White House officials have prepared for the prospect by culling long lists of possible candidates, poring through old cases and weighing a variety of factors from judicial philosophy to age. 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.

"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.

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