Activists Gear Up For Nominee Fight

Some conservatives yesterday advanced the strategy of naming Janice Rogers Brown, who was confirmed last month to the D.C. Circuit after a Senate battle. Having just confirmed Brown, activists reason, Senate Democrats would not be able to turn around and argue that she meets the criteria of "extraordinary circumstances" deserving a filibuster as defined by a recent bipartisan deal on judicial nominations. And as a black woman, she would be harder to vote against, these strategists reasoned.

"She's just been through the process," said Gary L. Bauer, president of the Christian organization American Values. "It's kind of hard to vote for her once and then turn around and say she's unacceptable."

The one candidate who unifies most conservatives -- in opposition -- is Gonzales. Gonzales occupies a spot on the innermost orbit of the Bush universe, having been a longtime adviser. He was appointed by Bush to the Texas Supreme Court, then he served as White House counsel before becoming attorney general.

Advisers both inside and outside the administration said Bush has not ruled him out for O'Connor's seat, although in his current capacity he is helping to direct the search, and friends say he is reluctant to join the high court, preferring the pace of the executive branch.

While Bush places enormous trust in him, Gonzales elicits groans and eye-rolling from conservatives who worry how he might rule on some issues and see him as another potential David H. Souter, the little-known New Hampshire judge put on the bench by Bush's father and who has turned out to be far too liberal for their taste.

Conservatives most often cite Gonzales's rulings on parental consent cases in Texas involving minors seeking abortions. Gonzales has publicly called Roe v. Wade , the case that established a woman's constitutional right to abortion, "the law of the land," once adding that "how I feel about it personally may differ with how I feel about it legally." Asked during a recent interview with PBS's Charlie Rose whether support for Roe would disqualify a prospective nominee, Gonzales said, "There are no litmus tests for this president."

"The only nomination that would cause the people that I really associate with consternation would be Gonzales," said Michael P. Farris, a prominent conservative constitutional lawyer. "The president's going to need all the help he can get no matter who he picks. I don't think many people in the socially conservative movement would openly oppose him, but the enthusiasm would be sufficiently dampened to the point that many would not participate."

Out of deference to a Republican White House, other conservatives are not as open about their opposition to Gonzales, using code instead, such as urging the president to pick another Scalia or Thomas, whom he has described as his model jurists.

"Conservative groups strongly believe that the president should just do what he promised to do. He was crystal clear on his vision of the appropriate qualities of a judge," Sen. Jeff Sessions (R-Ala.) said in an interview yesterday. "He can't allow personal or short-term political factors to override his commitment."

Other conservatives have come up with a new line of argument to dissuade the White House from selecting Gonzales without offending the president. Because he helped fashion so many administration policies, they said, Gonzales would have to recuse himself if they ever came before the bench, including the highly emotional case of late-term abortions that opponents call "partial birth."

"I don't think the president wants to have a 4 to 4 vote when that comes up before the Supreme Court," said Wendy E. Long, counsel to the Judicial Confirmation Network, a group supporting conservative judicial nominees. "That's just not a good position for a justice to be in."

Yet some conservatives have resigned themselves to Gonzales. Robert H. Bork, whose Supreme Court nomination was defeated in 1987, said his friends believe Gonzales will be the nominee and that lobbying will not change that. "Already, people have been pushing various candidates, but I don't think that's going to have much effect on Bush," he said. "I think he already knows what he wants to do."

Bush advisers refused to discuss individual candidates yesterday but brushed off criticism of Gonzales.

"This is not the first time he has come under scrutiny," said a senior administration official who spoke on the condition of anonymity because of the sensitivity of the selection process. "He's a well-centered person. His relationship with the president is strong enough that I don't think he worries too much about the chatter."

Indeed, Gonzales draws criticism from the left side of the political spectrum as well. During his confirmation as attorney general earlier this year, most Democrats voted against him, citing his authorship of detention policies that some blamed for leading to abuse of military detainees.

"We would have serious concern about Gonzales based on what we know of his record on issues pertaining to torture, executive privilege and his handling of death penalty clemency positions" in Texas, said Nan Aron, president of the liberal advocacy group Alliance for Justice. "On other issues about which the right is particularly concerned -- reproductive rights, civil rights -- it would be important for the Judiciary Committee to ask him to answer questions. It's very difficult to know where he stands."