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Possible Court Nominees Pose a Quandary for Bush
A Conservative Anchor vs. an Ethnic First

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.

If Rehnquist retires, most officials expect him to announce it on the last day of the court term, scheduled for June 27, although it could be extended by two days to deal with remaining decisions. Bush then would face a strategic decision about how fast to name a replacement.

After more than four years to prepare, Bush would be ready to move forward almost immediately, aides believe. Yet because the Senate plans to recess during August and Republican strategists learned from the failed Robert H. Bork nomination not to let a nominee twist as a target for opponents during a long summer break, some advisers have explored whether it might be smarter to wait until late July or early August to make an announcement.

"The argument for doing it earlier is to get the name out and Congress can gear things up," said a senior administration official who asked not to be named. "The argument against it is you have a long lead time and you leave your person as a punching bag."

Depending on the nominee, Bush could announce right away and then press the Senate to move quickly without waiting until September, Republican strategists said. "There's no way that the right is going to nominate somebody and get him halfway through the process and then go home in August and leave him dangling out there," said Sean Rushton, executive director of the Committee for Justice, a group formed to push for Bush judicial nominees.

With interest groups on both sides readying for a brutal, multimillion-dollar, campaign-style fight, GOP strategists argue that Bush should name a strong conservative rather than worry about wooing Democrats. "If you're ready to compromise, you're probably going to end up with someone pretty bad," said M. Edward Whelan III, a former clerk to Justice Antonin Scalia and president of the Ethics and Public Policy Center. "I imagine that anyone you're going to nominate is going to run into opposition by the Democrats, and so if that's the case, why not get somebody good?"

While Bush has kept mum, about a dozen names of possible candidates have floated out, including Judges Michael W. McConnell of the U.S. Court of Appeals for the 10th Circuit; J. Harvie Wilkinson III of the 4th Circuit; Emilio M. Garza of the 5th Circuit; and former solicitor general Theodore B. Olson. McConnell has important advocates in Bush circles, but Wilkinson and Olson, in their sixties, are thought to be too old. Garza is seen as a possible choice if Gonzales is not selected. Advisers do not believe a current justice will be elevated to chief.

The three apparent front-runners -- Luttig, 51; Roberts, 50; and Gonzales, 49 -- all hail from the same generation but bring different strengths and weaknesses.

Luttig, a Texas native and former Scalia clerk appointed by Bush's father, boasts the longest judicial résumé with 14 years on the Richmond-based 4th Circuit appeals court, while Gonzales served for two years on the Texas Supreme Court and Roberts was named by the current president to the U.S. Court of Appeals for the District of Columbia Circuit two years ago. Luttig likely would have a powerful Senate patron in Sen. John W. Warner (R-Va.). But Luttig's experience also gives him the longest track record for opponents to mine for ammunition against him.

Roberts, a former Rehnquist clerk who served in both the Reagan and George H.W. Bush Justice Departments before heading to private practice, is well known and well liked in Washington, and some GOP strategists consider him the most confirmable conservative. But in the end, Gonzales brings a powerful personal story as an up-by-his-bootstraps Hispanic American, as well as the friendship of the president.

"There's Judge Gonzales, and then there's everybody else," said Bradford A. Berenson, a former Bush White House associate counsel. "Whether you're looking at Judge Gonzales or everybody else very much depends on how the president judges the political case for appointing an Hispanic and the personal case inside himself for appointing Judge Gonzales."

Yet several people familiar with his thinking said Gonzales prefers the excitement and energy of the executive branch and does not yearn for a lifetime appointment to the slower-paced high court. "I know he's ambivalent about the prospect," said one person who has spoken with Gonzales. "This is not something he dreams of."

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