Are a Nominee's Views Fair Game?

Presidential political adviser Karl Rove said,
Presidential political adviser Karl Rove said, "Throughout the history of the republic, Supreme Court nominations receive an up-or-down vote." (By Susan Biddle -- The Washington Post)
By Peter Baker and Charles Babington
Washington Post Staff Writers
Wednesday, July 6, 2005

The White House and Senate Democrats headed toward a collision yesterday over the role ideology should play in the selection of the next Supreme Court justice, outlining a key conflict that could define the nomination battle over a successor to Justice Sandra Day O'Connor.

Karl Rove, President Bush's chief political architect, said precedents from the most recent Supreme Court vacancies suggest that opposition-party senators have a responsibility to back a president's choice if they believe a nominee is qualified, even if they disagree with the person's views. He also maintained that a strongly held ideological stance would not amount to "extraordinary circumstances" justifying a Democratic filibuster under a recent bipartisan Senate deal.

But several Senate Democrats who co-authored that deal countered that ideology is a legitimate line of inquiry and potentially a reason to block a nomination. "In my mind, extraordinary circumstances would include not only extraordinary personal behavior but also extraordinary ideological positions," said Sen. Joseph I. Lieberman (D-Conn.), a moderate the White House has been hoping to enlist to give bipartisan backing to the nominee.

The schism in interpretation suggested that the Senate filibuster deal crafted just two months ago to resolve an impasse over lower-court judicial nominations could unravel in the higher-stakes fight over the first Supreme Court vacancy in more than a decade. Even before a nominee has been named, both sides have moved quickly in the days since O'Connor announced her retirement Friday to set the parameters for the battle to come.

Bush, who flew to Denmark yesterday for the first stop in a four-day European trip, signaled that he may take longer to pick a nominee than expected, possibly waiting until late in the month instead of next week. But he left behind advisers to assemble a campaign-hardened team to push through confirmation of his eventual choice, an effort to be led by former Republican National Committee chairman Ed Gillespie.

The White House also rejected conservative attacks on Attorney General Alberto R. Gonzales, a longtime Bush friend and adviser considered a possible nominee. Some of the president's conservative allies have sharply warned the White House against nominating Gonzales because they view him as being too moderate, the only one of the widely circulated candidate names to generate such open opposition.

Rove, the president's deputy chief of staff and the White House's unofficial ambassador to conservatives, said Bush would disregard the criticism from groups that usually are friends. "He recognizes that's just in human nature and ignores it," Rove said in a luncheon interview with Washington Post reporters and editors.

Rove did not comment on the chances of a Gonzales nomination but at one point referred to him as "Justice Gonzales," provoking laughter. He quickly added that he used the honorific because of the attorney general's former tenure on the Texas Supreme Court, but among Bush aides he is typically referred to as "Judge Gonzales."

In outlining the selection process, Rove said Bush will spend "several weeks" studying and interviewing potential candidates in search of someone with a history of judicial temperament and legal scholarship, demonstrated integrity, and a disinclination to "legislate from the bench." But the president will not question any of the candidates about specific issues, such as how they would rule on abortion, he said, nor should the Senate once the White House submits the nomination.

"The president believes that somebody ought to have the proper understanding of what the role of a judge is to be, which is less expansive than some in the legal community" believe, Rove said. He added: "We don't think it is appropriate, as some have suggested, that initial candidates either . . . during the president's time of consideration or during the confirmation process be asked to in essence declare how they would vote in certain cases."

He repeatedly cited as an example the 1993 confirmation of President Bill Clinton's nomination of Ruth Bader Ginsburg to the Supreme Court. Many Republicans strongly disagreed with her liberal views and the record she compiled as a top lawyer for the American Civil Liberties Union, Rove noted, but she was overwhelmingly approved, 96 to 3.

Rove said Bush seeks a nominee who will correct what the president sees as a widespread problem of judges who seek to make law rather than narrowly interpret it, citing as an example the Massachusetts Supreme Judicial Court decision last year permitting same-sex marriage. "I do think he worries about federal courts, federal and state courts, being activist and substituting their judgments for the judgments of elected state and federal assemblies," Rove said.

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