By Peter Baker
Washington Post Staff Writer
Saturday, July 16, 2005
President Bush's advisers are focusing the search for a Supreme Court nominee to see if there is an acceptable female or minority legal figure to succeed Justice Sandra Day O'Connor, the first woman to serve on the court, according to Republican strategists familiar with the selection process.
The White House has been moving in that direction for several days, the strategists said, even before Chief Justice William H. Rehnquist's dramatic statement Thursday night dispelling speculation that he may retire soon. Rehnquist's decision to remain on the court despite his health means that Bush is likely to have only O'Connor's seat to fill in the near future.
"With the chief off the table, obviously the question of whether the administration chooses a woman becomes far more important," said one GOP strategist with insight into the thinking of Bush aides, who insisted on anonymity because the White House has tried to keep the selection process confidential. "They are now trying to screen women to see if there are any who are acceptable to the president. That doesn't mean he has to pick any of them, but it's perfectly reasonable for them to look at the field of candidates."
Jay Sekulow, chief counsel at the American Center for Law and Justice and an adviser to the White House on court issues, said Bush could easily find a female nominee who would meet his standards for a justice who adheres to a strict interpretation of the Constitution. "There's a lot of women who are very well qualified for the position," he said. "I wouldn't be surprised if it's a woman."
If not a woman, several Republicans close to the White House said Bush may pick a black or Hispanic nominee. While much public attention focused initially on Attorney General Alberto R. Gonzales, strategists said it appears less likely that he will be selected for this seat. But other candidates have emerged or reemerged, including former deputy attorney general Larry D. Thompson, an African American who is a Bush favorite.
It remains difficult to assess how serious the current attention on women and minorities actually is, particularly because the White House has closely held its deliberations. Sometimes during a high-profile selection process such as this, names are floated to flatter certain individuals and their powerful patrons or to massage important constituencies.
But the White House has sent signals that have raised expectations in recent days, leading some outside advisers to conclude that Bush wants to name a woman or a member of a minority group. On Tuesday, Laura Bush said in a television interview that "I would really like for him to name another woman."
The next day, she tried to soften the sentiment to avoid boxing her husband in. "I let everyone know yesterday that I thought it should be a woman . . . but actually, you know, whether it's a man or a woman, I know that whoever he picks will be a person of great distinction," she told reporters traveling with her in Africa. Yet the impact of her opinion was felt strongly in GOP circles here, seen either as an indication of the president's intent or an extraordinary high-profile nudge.
White House aides have suggested in the past that the president would take such factors into account, instructing journalists interested in understanding Bush's approach to examine his record as governor of Texas, where he was credited with appointing a number of women and minorities to the state bench.
"Diversity always plays a role in the president's thinking," Karl Rove, the White House deputy chief of staff and one of a small circle of aides involved in the vetting, told Washington Post editors and reporters last week, pointing to diversity in Bush's Cabinet and judicial nominations. "I wouldn't expect that this would be very different."
With only one other woman left on the court, Ruth Bader Ginsburg, the appointment of another could be popular with the public. A USA Today-CNN-Gallup Poll released this week found that 78 percent of those interviewed considered it essential or at least a good idea to put a woman in O'Connor's seat and 67 percent deemed it a good idea to name a Hispanic. Bush aides have delighted in the past in taunting Democrats who opposed the president's minority nominees for lower courts.
Yet many liberal women's rights groups have not tried to apply much public pressure on Bush to nominate a woman, on the theory that ideology is more important for their issues than gender. A male justice supportive of abortion rights, in this view, would be preferable to a woman who votes to overturn Roe v. Wade .
Gonzales, the man many allies thought was Bush's first choice, may no longer be in contention, according to several strategists with White House ties. Suspicious of his views on abortion and affirmative action, conservatives aggressively assailed a Gonzales nomination, but several other factors have complicated the prospect, including questions about whether he would have to recuse himself from cases involving administration policies.
Some close to the White House now doubt that the president will pick Judge Emilio M. Garza of the U.S. Court of Appeals for the 5th Circuit, once interviewed by Bush's father for the Supreme Court seat that went to Clarence Thomas in 1991. But Thompson, a friend of Thomas and now general counsel at PepsiCo Inc., appears to be a stronger possibility, according to strategists. Some also mentioned Michigan Supreme Court Judge Robert P. Young Jr., who is black.
The list of women being mentioned in GOP circles has grown in recent days. Bush could pick either of the two judges he just pushed through the Senate for appeals court seats, Priscilla R. Owen, an old friend from Texas, or Janice Rogers Brown, from California, though either would be an incendiary choice to Democrats who only reluctantly permitted floor votes on them.
Judges Edith Hollan Jones and Edith Brown Clement of the 5th Circuit are widely discussed as well; Jones was a candidate considered by Bush's father, the runner-up to David H. Souter in 1990, but some Republicans say she may be too controversial because of her strongly expressed views against Roe .
Other names emerging in recent days include Judge Alice M. Batchelder of the 6th Circuit, Chief Judge Deanell Reece Tacha of the 10th Circuit, Judge Karen J. Williams of the 4th Circuit, Judge Maura D. Corrigan of the Michigan Supreme Court and professor Mary Ann Glendon of Harvard Law School.