Bush Faces Pressure to Diversify Supreme Court

By Michael A. Fletcher and Dan Balz
Washington Post Staff Writers
Sunday, September 25, 2005

As John G. Roberts Jr. sails toward almost certain confirmation as the 17th chief justice of the United States, President Bush faces conflicting pressures about how much race and sex should factor into his deliberations for filling the second vacancy on the high court.

With Bush poised to make another nomination as soon as this week, he is hearing growing demands to name a woman or minority to the vacancy created by the pending retirement of Justice Sandra Day O'Connor, Republican political and legal strategists said.

Laura Bush twice has said that she would like to see a woman succeed O'Connor, the first woman on the Supreme Court. A number of Latino group officials have publicly urged the president to name the first Hispanic to the high court.

But the pressure is also self-imposed by a president and White House that have made outreach to the Latino community among their most visible political priorities.

Hector Flores, president of the League of United Latin American Citizens (LULAC), said the Hispanic vote helped reelect Bush in November and that there could be political consequences for the Republicans if Bush twice passes over Hispanic judges in his first two court nominations.

"If the Republican Party wants to continue attracting voters to them, they're also going to have to deliver on the most crucial and important position in this country, which is the next vacancy," he said.

White House officials have said political calculations will have little influence on Bush's decision, but other GOP strategists said there is no way for the president and his advisers to insulate themselves from political factors. "Given that you're replacing the first female justice, issues of race and gender certainly have to be a factor at this point," one GOP official said.

Many conservative activists, however, are urging Bush to focus only on appointing the most reliable conservative to fill a vacancy that could tip the court's delicate balance on contentious issues such as affirmative action, the reach of federal power over states, and the role of religion in public life.

"I think things such as race and gender were much more important when we were breaking new ground," said Wendy E. Long, counsel of the Judicial Confirmation Network, a conservative group formed to campaign for Bush's judicial nominees. "I feel like we've broken through that ceiling. And that's liberating, because it allows people to be considered strictly on the merits."

Two members of the U.S. Commission on Civil Rights, Jennifer C. Braceras and Abigail Thernstrom, joined by former commissioner Linda Chavez, sent a letter yesterday to all 100 senators urging them to focus only on judicial philosophy in evaluating court nominees.

While the president's choice could determine the direction of the court for the foreseeable future, it would also help define Bush's legacy. The religious conservatives who form the core of Bush's supporters are hoping for a justice who can be counted on to vote to limit, and eventually overturn, the right to abortion. At the same time, Bush has been at the forefront of trying to broaden the GOP's appeal among minorities and women.

"He is genuinely committed to diversity on the federal bench," said Brad Berenson, a lawyer who worked for the Bush administration for two years identifying and vetting potential court appointees. "It was explicit. He wanted his staff to find qualified women and minorities."

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