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GOP Plots Court Strategy With Rehnquist in Mind
Even factoring Scalia out of the equation, Bush has different calculations for a chief justice than for O'Connor's seat. In looking for a chief justice, some White House advisers said, they would consider management experience and look for a deeper legal résumé than for an associate justice.
If Rehnquist does retire, the advisers said, then the White House must decide whether to fill his seat first and let a replacement for O'Connor go second as she indicated in her retirement letter that she would continue to serve until a successor is confirmed. And Bush must decide whether to package a staunch conservative with a less conservative nominee such as Gonzales in hopes of satisfying various constituencies enough to ease confirmation, or to favor a bolder approach by advancing two reliable conservatives.
If Rehnquist does not retire right away, Bush faces a similar choice, in that he could go with a conservative first and wait to nominate Gonzales for the next opening, or the other way around. But in picking an O'Connor replacement now, he would have to hold back the nominee he actually wants for chief justice.
"I may be totally wrong on this, but I think he means to change the court and that he would not be sending a balancer-type candidate," said Paul M. Weyrich, chairman of the Free Congress Foundation and a leading conservative voice in Washington. "Now it could be that friendship with Gonzales outweighs that. I don't know. But in the discussions I've had with him, he seems generally committed to changing the composition of the court."
"We would say, 'Look, pick two awesome constructionists,' " or jurists who strictly interpret the Constitution, said Sean Rushton, executive director of the Committee for Justice, a group formed to support Bush nominees. "The country would like to shift the court to a more solid majority of constructionists or whatever you want to call it. I think the public is fed up with the courts handing down rulings like the pledge and the Ten Commandments and the property case," three recent cases that have sparked controversy.
Conservatives have warned against Gonzales because they see him as too moderate on abortion and affirmative action. Bush has bristled at the attacks and called on his supporters to tone down their rhetoric.
In his first comments on his prospects, Gonzales said in an interview published yesterday that he was not campaigning to become a justice but his comments did not rule it out either. "I've been asked since 2001 whether or not I'd consider going on the court, and I've consistently said, 'I'm not a candidate for the Supreme Court' -- and that remains true today," Gonzales told the Denver Post during a visit to Colorado. "I love being attorney general. My job, currently, is to help the president make this decision."
The White House presumes that Democrats will fight anyone it nominates and found reinforcement for this view in comments by Sen. Charles E. Schumer (D-N.Y.) overheard on his mobile telephone while riding a train to New York. "We are contemplating how we are going to go to war over this," Schumer was reported saying on the Drudge Report Web site.
Schumer's office did not dispute the account. "If they put forward an extremist nominee, we will not just simply roll over," said his spokesman, Israel Klein. "But he has stated over and over again, he hopes for a consensus nominee who will get broad support in the Senate."
Republican strategists said there is no such person for Bush to find and therefore he should not fall into the trap of trying. "I don't think he's looking for consensus nominees," said Sekulow, noting that Bush has often praised Scalia and Clarence Thomas as his models for a Supreme Court justice. "I think the president meant what he said and said what he meant."