By Peter Baker and Jo Becker
Washington Post Staff Writers
Wednesday, September 7, 2005
President Bush vowed yesterday to "take a good, long look" at a "wide open" list of candidates before deciding whom to nominate for a second open seat on the Supreme Court, as both sides girded for twin confirmation battles and recalibrated strategies after the dizzying events of recent days.
The casket of the late Chief Justice William H. Rehnquist was laid in repose in the Great Hall of the Supreme Court, borne by a cast of pallbearers that included his former clerk and would-be successor, John G. Roberts Jr. Some influential Democrats signaled that Roberts's ascension increased their eagerness to press him on his record -- particularly on civil rights, which they said has taken on new salience in the wake of Hurricane Katrina.
"What the American people have seen is this incredible disparity in which those people who had cars and money got out and those people who were impoverished died," Sen. Edward M. Kennedy (D-Mass.) said in an interview . The question for Roberts, he said, is whether he stands for "a fairer, more just nation" or for "narrow, stingy interpretations of the law to frustrate progress."
Bush, who tapped Roberts on Monday to replace Rehnquist, suggested that he will take his time finding a new candidate for the seat of retiring Justice Sandra Day O'Connor, which was originally supposed to go to the appellate judge. Aides said they expect no announcement this week as Washington focuses on the damage wrought by Hurricane Kristina.
At the same time, Bush playfully hinted he could choose his friend Alberto R. Gonzales, a prospect that reignited consternation among conservative groups skeptical of the attorney general's politics.
"The list is wide open, which should create some good speculation here in Washington," Bush told reporters after a Cabinet meeting, generating laughter. With a sly look, he added: "And make sure you notice when I said that, I looked right at Al Gonzales, who can really create speculation."
Whether or not the president actually intends to nominate Gonzales, who would be the first Hispanic on the court, that lighthearted remark crystallized the renewed battle within the Bush camp over the selection of an associate justice -- a virtual replay of the fight that preceded Roberts's original nomination in July, pitting the Republican right against the White House.
At the same time, having already chosen a white man for the high court, Bush came under pressure from within his party to make diversity a priority. Republican Sens. Arlen Specter (Pa.), Kay Bailey Hutchison (Tex.) and John Cornyn (Tex.) all advised the president to consider a woman or a member of a minority. O'Connor and first lady Laura Bush have both previously stated a preference for a second woman on the bench as well, while Secretary of State Condoleezza Rice smiled broadly yesterday when Bush was asked whether he would name a female nominee.
With O'Connor's pending departure, the court would be left with one woman, Ruth Bader Ginsburg, and one minority, Clarence Thomas. "Two women are, I think, a minimum," Specter said, though he added he does not favor a quota.
Complicating the picture is the political aftermath of Katrina, which analysts say has left Bush weakened amid recriminations over a slow, ineffectual initial response. Some analysts speculated that Bush might avoid a provocative conservative in favor of a less ideologically pure nominee, possibly Gonzales. But White House advisers scoffed at the notion, suggesting that fundamentally misunderstands Bush's nature.
Conservatives lobbied against shifting course because of Katrina. "The court is a long-term thing," said William Kristol, the influential editor of the Weekly Standard. "It's crazy to mess up your long-term legacy to possibly help him with a short-term PR problem. I think Gonzales would be a disaster."
Some Republican strategists reason that the hurricane may actually work in their favor in that the public has no appetite for a fiery, partisan battle over the Supreme Court. "People are in no mood for a circus," said a senior administration official who spoke anonymously because of the sensitivity of the situation. "The country is dealing with a terrible tragedy. The American people want a dignified process."
Specter, chairman of the Judiciary Committee, yesterday rescheduled hearings originally slated for today until Monday. Preparing for a showdown, some Democrats mapped plans to link Roberts's past opposition to affirmative action and other civil rights measures to the unfolding scenes of mostly poor African Americans hit hardest by the hurricane.
Democrats will make that argument in part through their witness list, which includes Rep. John Lewis (D-Ga.), a leader in the 1960s civil rights movement who plans to note that courts historically have led the way in guaranteeing rights for the disenfranchised. "New Orleans is just a symbol," he said in an interview. "We are still a nation divided by race and class, and I don't see [Roberts] being an advocate for those who were left out and left behind."
Democrats used the delay in the Roberts hearings to renew their request for documents related to his service as principal deputy solicitor general under President George H.W. Bush, but Specter rejected the appeal. The government has released tens of thousands of pages of memos and papers from Roberts's early service in the Reagan administration while refusing to turn over those from the solicitor general's office on the grounds of preserving confidential deliberations.
On other matters, Democrats sent mixed messages as party leaders seemed to search for a consensus strategy. Some said Roberts should be held to a higher scrutiny because of the influence of a chief justice. "Look at [Earl] Warren and Rehnquist," said Sen. Charles E. Schumer (D-N.Y.), referring to two long-serving chiefs credited with moving the court to the left and right, respectively.
But other Democrats said the switch of Roberts to replace Rehnquist rather than O'Connor actually made his confirmation less significant because now it would be trading one conservative for another. Unlike Rehnquist, O'Connor was a decisive vote in many cases. "She has been the swing vote on so many of the freedoms" important to Americans, said Sen. Barbara Boxer (D-Calif.).
In a similar vein, Democrats also split on whether Bush should signal his choice for O'Connor's seat before the Senate votes on Roberts. Shortly after Bush picked Roberts for chief, Kennedy said the president should disclose his proposed replacement for O'Connor expeditiously. But Minority Leader Harry M. Reid (D-Nev.) urged Bush not to rush. "It would seem to me the White House may want to take it a little more slowly," Reid told reporters.
Bush appeared in no rush. "I'll take a good, long look at who should replace Justice O'Connor," he said. Bush noted that he spoke with O'Connor on Monday to inform her that Roberts would be submitted for Rehnquist's seat instead of hers and to remind her that she had agreed to remain on the court until her successor is confirmed. "Her first reaction was that she better get back to doing her homework," he said.
Having gone through a selection process just two months ago, Bush has a good sense of the universe of candidates, who besides Gonzales appear to include former deputy attorney general Larry D. Thompson and a plethora of appeals court judges, including J. Michael Luttig, Edith Hollan Jones and Priscilla R. Owen. Bush has not scheduled any more candidate interviews, nor is he holding any regular meetings with aides, instead discussing the choice on a more ad hoc basis by calling advisers when he has a thought or question, officials said.
"He's got his mind organized around a short, decent list of people," said one senior official close to the process who spoke on the condition of anonymity because of the confidentiality of the process. "But he's not close-minded about this at this point."
As much as anything, timing may be the open question. Bush is unlikely to announce the next nomination in the midst of next week's hearings on Roberts, but the president's advisers are debating whether it would be better to go ahead after the hearings or to wait until after a final floor vote, now scheduled for the week of Sept. 26.
Even if O'Connor is sitting on the court when its next term opens Oct. 3, her presence may not matter much. If she is not still there when decisions are written and issued months later, her vote would not count. In instances when that would leave a 4 to 4 tie, the cases might have to be reargued for her successor's benefit.
"The president ought to act expeditiously simply to fill the slot as quickly as possible," said Todd F. Gaziano, a scholar at the Heritage Foundation and former Jones clerk.
Others argue that even with two appointments, Bush needs another to effect lasting change. "While this weekend was filled with dramatic events, they won't transform the court in the way people on both sides hope or fear," said M. Edward Whelan III, president of the Ethics and Public Policy Center and a former clerk to Justice Antonin Scalia. "Real transformation requires replacing someone on the left with a proponent of judicial restraint."
Staff writer Charles Babington contributed to this report.