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Are a Nominee's Views Fair Game?
As High Court Battle Nears, Parties Parse the Senate Filibuster Deal

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.

Yet several key Democratic senators -- including some who helped craft the recent bipartisan deal -- said yesterday that a nominee's positions on issues would be part of the consideration. Under current Senate rules, it takes 60 senators to cut off a filibuster, but the Republicans hold 55 seats and have been frustrated at Democratic blocking tactics on nominees to federal circuit courts.

Under the May deal, crafted by seven senators from each party, Democrats agreed not to filibuster judicial nominees except in "extraordinary circumstances," while Republicans agreed not to support the "nuclear option" the GOP leadership proposed to ban judicial filibusters. The Senate confirmed several Bush nominees to the bench who had been criticized by Democrats as too conservative. Since then Republicans have interpreted it to mean no other nominee could be filibustered for sharing the same ideology.

Sen. Mary Landrieu (D-La.), one of the 14 who fashioned the agreement, said through a spokesman: "A nominee's political ideology is only relevant if it has been shown to cloud their interpretation of the law. . . . A pattern of irresponsible judgment, where decisions are based on ideology rather than the law, could potentially be 'extraordinary.' "

Sen. Ken Salazar (Colo.) rejected Republican assertions that he and other Democratic signers must accept a nominee as conservative as Janice Rogers Brown, now confirmed to a seat on the U.S. Court of Appeals for the District of Columbia Circuit, because the agreement allowed her confirmation. "It didn't set a standard" for Supreme Court confirmations, Salazar said. "We would leave it up to each person to define what extraordinary circumstance means."

Sen. Ben Nelson (D-Neb.), however, said judicial activism concerns him more than ideology. "Are they going to be an activist?" Nelson asked rhetorically in discussing what might cause him to filibuster a Supreme Court nominee. "Their political philosophy may not bother me at all if they're not going to be an activist."

The president's team considers Nelson a key Democrat, and White House Chief of Staff Andrew H. Card Jr. called the senator from Air Force One yesterday.

Rove made clear that Bush will consult with senators in both parties, but that he has no interest in any kind of grand bargain between the White House and Congress in which legislators would give support in exchange for advance input on the president's choice. Some Democratic groups have suggested that Bush seek an early consensus. Rove, however, cited his own weekend reading of the Federalist Papers to argue that the framers of the Constitution envisioned no such role for Congress, leaving the president alone to make nominations.

The discordant definitions of the filibuster deal could lead to the Senate showdown averted in May. If GOP signers to the deal decide that Democrats have broken its terms, they might throw their support to the "nuclear option" and vote to eliminate filibusters. Republicans point out that no Supreme Court nominee has ever been filibustered except Abe Fortas in 1968, when it was unclear that Fortas, an associate justice, had majority support for confirmation as chief justice.

"Throughout the history of the republic, Supreme Court nominations receive an up-or-down vote," Rove said. "We expect the Senate will" hold such a vote, he added.

The White House moved to put together a team to manage the nomination, tapping Gillespie to run the effort in a mostly nonpublic role, according to a Republican source, confirming a New York Times report. As party chairman, Gillespie was a Bush loyalist and key part of the inner circle that ran last year's reelection campaign.

Joining him at the White House, according to the source, will be another campaign veteran, Steve Schmidt, who was a rapid-response specialist last year and now serves as counselor to Vice President Cheney.

Rove would not confirm the personnel moves yesterday but described a selection process longer than originally anticipated. Instead of announcing a nominee next week, Bush could take weeks because of a variety of factors such as the need to focus this week on the Group of Eight summit in Scotland.

"That is going to conspire to make this a several week" process, Rove said, adding: "There's been no date set by which he's going to make a decision or make an announcement."

In an interview published yesterday in USA Today, Bush said it would take "over the course of the next few weeks" and called on interest groups to "tone down the heated rhetoric." He also rejected conservative attacks on Gonzales. "Al Gonzales is a great friend of mine," Bush said. "I'm the kind of person, when a friend gets attacked, I don't like it."

Staff writer Dan Balz contributed to this report.

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