The Next Nominee

Monday, September 26, 2005

WITH JUDGE JOHN G. Roberts Jr. all but certain to be confirmed as chief justice of the United States, attention shifts to the question of who will replace Justice Sandra Day O'Connor. In terms of the left-right balance of the court, this matters more than President Bush's replacement of one conservative chief justice with another. But in making his second nomination, Mr. Bush faces an additional complication: diversity. The president has never made a secret of his desire to put the first Hispanic on the high court, while another male nominee would leave only one woman among the nine justices. The White House's concerns are legitimate: The court is not a representative institution, but it shouldn't be parade of white men either. Finding a nominee who adds diversity to the court while at the same time satisfying Mr. Bush's base and maximizing support from across the political spectrum is tricky.

Garnering broad support remains a critical goal. The five Democrats who opposed Judge Roberts in last week's Judiciary Committee vote raised doubt about whether they would support any conservative. Mr. Bush can't change that. He can, however, and should send to the Senate another nominee who offers no grounds for reasonable opposition.

The first criterion on which he must insist is the highest caliber of professional qualification. Particularly following the Roberts nomination, it would be a glaring mistake to choose the second nominee for narrowly ideological reasons or personal political loyalty.

A second important factor is temperament. One reason Judge Roberts seems so different from conservative justices such as Antonin Scalia is that he does not project a desire to use the bench to wage a war for the future of American society. Rather, he portrays the court as a place to resolve disputes between parties that cannot do so on their own. Mr. Bush should once again avoid a nominee who displays a grandiose vision of the judicial function. Similarly, nominees who display a commitment to precedent are far less threatening to those who disagree with them than ones who appear eager to overturn decisions with which they disagree. Justice Clarence Thomas is the court's most radical justice precisely because of his blithe willingness to revisit holdings that are decades old.

Mr. Bush has often said that he seeks judges who will interpret the Constitution strictly. Fidelity to the Constitution as written can be an honorable position or another guise for mandating one's own preferences from the bench. A nominee with a history of bending an articulated judicial philosophy for claims he or she finds politically congenial will raise suspicions; a nominee who has been a straight shooter on the law should be easier for a wide swath of American society to accept.

There is no lack of strongly qualified nominees who would add diversity to the court while honoring President Bush's oft-repeated insistence on justices who will not legislate from the bench. Such nominees are also the likeliest to win confirmation without a bitter fight. At first glance, D.C. appellate lawyer Maureen E. Mahoney, former deputy attorney general Larry D. Thompson and appeals court judge José Cabranes, for example, all appear worthy of serious consideration. Judging from some of the candidates reportedly being considered, however, the White House appears tempted to sacrifice both quality and breadth of potential support in order to push the court to the right. That would be an unfortunate move.

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