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With Miers Out, Focus Shifts to Next Nominee
Experts Say Field is Wide Open

By William Branigin
Washington Post Staff Writer
Thursday, October 27, 2005 4:36 PM

With the withdrawal of Harriet Miers as a nominee to the Supreme Court, attention is now turning to President Bush's other possible choices, and the field is wide open, legal experts say.

Although some senators want Bush to nominate another woman as a replacement for Justice Sandra Day O'Connor, who is retiring, Miers's pullout could renew consideration of male candidates. At the same time, the withdrawal could also lower the chances for some court prospects, given the criticism of Miers's lack of judicial experience and the White House's reluctance to produce documents involving top aides covered by executive privilege.

In a news briefing this morning, White House spokesman Scott McClellan said Bush is "deeply disappointed in the process" of confirming a Supreme Court nominee. "He will move forward in a timely manner to name a new nominee," the spokesman said.

Among those considered candidates are several federal appeals court judges -- notably Samuel A. Alito Jr., Emilio Garza, J. Michael Luttig, Edith Hollan Jones, Edith Brown Clement, Priscilla Owen, Michael W. McConnell, Janice Rogers Brown and J. Harvie Wilkinson III. Also widely mentioned as possibilities are Attorney General Alberto R. Gonzales, former deputy attorney general Larry D. Thompson, prominent constitutional lawyer Maureen Mahoney and Michigan Supreme Court Justice Maura Corrigan.

McClellan dismissed the role of conservative opposition in prompting Miers's withdrawal, insisting that the key issue was senators' requests for documents from her service in the White House and her refusal to provide or discuss them.

"We've always been focused on the Senate, not on the outside commentary or outside groups," he said.

Miers, who will retain her current job as White House counsel, "recognized that the process was headed toward an unresolvable impasse," McClellan said. He added that "the culture of today's confirmation process makes it very difficult for somebody with a different background from those who have served on the bench or who have worked on constitutional issues" to go through Senate confirmation.

McClellan gave no indication of which candidates might now be under consideration. Bush is "going to select someone who he feels is the best person for the position, and I don't want to speculate before that," McClellan said. "But as I indicated, we fully recognize the culture of today's confirmation process. And we have gone through this experience and that is taken into account, I think."

Asked if it was "safe to say the next nominee is not going to be a White House employee," McClellan said only that Bush "will let you know who the next nominee is in due course."

Sen. Richard J. Durbin (D-Ill.) told reporters that even if Bush were to nominate someone tomorrow, the Senate would be unlikely able to take up the nomination before January.

Sen. Dianne Feinstein (D-Calif.), a member of the Senate Judiciary Committee, urged Bush to "take his time and appoint a nominee for all of the people." She said on CNN that Miers "may not be the best thing since sliced bread in terms of judicial qualifications," but that she did not deserve the treatment she received.

"Many of us want to see another woman" nominated to the Supreme Court, Feinstein said.

But Edward P. Lazarus, a partner at the Akin Gump Strauss Hauer & Feld law firm and a former Supreme Court clerk, said the withdrawal of Miers enhances the prospects of the "white male candidates" who had been on reported short lists.

"I don't think it has to be a woman," said Lazarus, the author of a book on the Supreme Court. He noted "rumors that several women candidates had turned down" nomination offers because of concerns about "the general ugliness of the confirmation process."

Women judges are probably still among the top contenders, Lazarus said, "but the field is now very wide open."

The Miers withdrawal "obviously brings back to life all the candidates who had been on the list before, but it does rejigger the possibilities somewhat," he said. "It makes it a bit more difficult" for Gonzales, for example, not only because he is opposed by some staunch conservatives, but because he faces the same executive privilege issues that Miers cited, Lazarus said. Gonzales, 50, served as White House counsel before Bush named him attorney general and replaced him with Miers at the start of Bush's second presidential term.

Among the "highly qualified" conservative male judges who "probably didn't get serious consideration" because of the previous focus on choosing a woman, Lazarus said, are Luttig, 51, a judge on the U.S. Court of Appeals for the 4th Circuit in Richmond, Va.; McConnell, 50, of the U.S. Court of Appeals for the 10th Circuit in Denver; and Alito, 55, of the U.S. Court of Appeals for the 3rd Circuit in Philadelphia.

Two of the more controversial potential women candidates are Owen, 50, who was confirmed in May for a seat on the U.S. Court of Appeals for the 5th Circuit after a protracted battle with Senate Democrats, and Brown, 56, an African American conservative who was blocked by Democrats for two years before being confirmed to the U.S. Court of Appeals for the District of Columbia Circuit in June.

"They'll be in the mix, just as they were last time," said Lazarus. But the nomination of either would "guarantee a big fight against the Democrats." Bush "would go from the frying pan of fighting in his party to the fire of facing very strong Democratic opposition."

A "maverick pick" could be Richard Posner, 66, a judge on the U.S. Court of Appeals for the 7th Circuit who is viewed as a brilliant jurist but probably too unpredictable for conservatives, Lazarus said.

Another dark horse candidate is Mahoney, 50, a top appellate lawyer who is considered by some court watchers as a female version of John G. Roberts Jr., the Bush nominee who won confirmation last month to become the new chief justice of the United States. Although a committed Republican, she may not satisfy the more conservative elements of the president's power base.

Like Roberts, Mahoney worked as a clerk at the Supreme Court for William H. Rehnquist, the late chief justice, and formerly served in the solicitor general's office under Kenneth Starr in the administration of President George H.W. Bush. In 2003, she helped win an affirmative action case in which the Supreme Court ruled 5-4 in favor of her client, the University of Michigan Law School, upholding the constitutionality of including race as a factor in admissions.

"My guess is they're going to go back to the same list they had before" when the president chose Roberts for the high court, said Jeffrey Lamken, head of the Supreme Court and appellate practice in the Washington office of the Baker Botts law firm. "I think there's going to be a strong incentive to choose a woman or a minority."

According to Mark Moller, a senior fellow in constitutional studies at the Cato Institute, Bush will be pressed to "pick somebody with broad support from his base" who has "a clear record of commitment to conservative constitutional principles." After the Miers nomination, he said, "I think that merit above all is the supreme criterion."

However, Moller added, "there really is a deep pool of talent cutting across race and gender that is available to the president."

He said his own long-shot candidate is Danny Julian Boggs, 61, the chief judge on the U.S. Court of Appeals for the 6th Circuit. A Reagan appointee, the Cuban-born Boggs "has a lot of support among conservatives," and, with his Hispanic heritage, would bring ethnic diversity to the court, Moller said.

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