By Jo Becker and Amy Goldstein
Washington Post Staff Writers
Saturday, October 29, 2005
With President Bush expected to pick a new Supreme Court nominee within days, several sources close to the selection process said the White House is focusing on a short list of appellate court judges vetted this summer before he nominated John G. Roberts Jr. to the high court.
The administration has backed away from any insistence that the nominee be a woman or a minority. Rather, it is focused on potential nominees who have previously won Senate confirmation, whose intellectual qualifications would be unquestioned and who have paper trails that make clear their conservative credentials, said one source who is close to the nomination process.
Those candidates, according to the sources, include several federal appellate judges, among them: Samuel A. Alito Jr., J. Michael Luttig, Michael W. McConnell, Emilio M. Garza, Priscilla R. Owen and Edith H. Jones. The sources spoke on the condition of anonymity because of the private nature of the discussions.
By focusing on such candidates, the Bush administration is shifting to what one source described as President Ronald Reagan's doctrine of picking justices. "The nominee can't be a stealth candidate for a number of reasons," the source said. "There are very, very few people who have the kind of credentials that the administration can put up in this environment that would not have a record."
The administration's efforts are in line with demands by conservatives on both sides of the fractious debate that doomed White House Counsel Harriet Miers's Supreme Court nomination. The conservatives are urging Bush to brush aside any concerns about triggering a polarizing confirmation battle with Senate Democrats and to pick a candidate who has displayed a long, stark record of conservative legal thought.
"I think we are going to see the kind of nominee we should have gotten in the first place: someone with a strong track record of conservative judicial philosophy," said Jan LaRue, chief counsel of Concerned Women for America. "I'd be shocked if it's not."
The next nomination will be Bush's third to the nation's highest court in slightly more than three months. After a long record of picking lower court judges who have consistently taken strong conservative positions, Bush took a different tack in filling Supreme Court vacancies.
Roberts, now chief justice, won support from right-leaning groups despite a relatively short and ideologically inconclusive record as a judge, although he was a strong advocate of conservative policies as a young Reagan administration lawyer.
Bush withdrew Miers's candidacy on Thursday after it engendered open opposition from some conservatives and deep skepticism among some Republican senators who questioned her conservative credentials and judicial qualifications.
Jay Sekulow, chief counsel of the American Center for Law and Justice and one of four prominent conservatives who worked closely with the White House on behalf of Miers, said he expects the next nominee to be "a known entity." Noting that the conservative opposition to Miers's nomination was based on the perception that she lacks a coherent judicial philosophy with which they agree, Sekulow said, "There is no point in repeating that."
Liberal advocacy groups, meanwhile, have called on Bush to put forward a consensus candidate capable of drawing bipartisan support. If the president names a candidate who is viewed as a doctrinaire conservative, they have vowed to fight.
"We hope that he won't kowtow to the far right," said Debra L. Ness, president of the National Partnership for Women and Families. "It would be very divisive for this nation."
Alito, a former federal prosecutor, has strong enough credentials to satisfy and reunite Bush's conservative base, which fractured over the Miers nomination. Nicknamed "Scalito" for his philosophical similarities to Justice Antonin Scalia, a conservative darling, Alito has the type of lengthy record that should please many conservatives.
In Planned Parenthood v. Casey , for instance, he was the sole dissenter when the U.S. Court of Appeals for the 3rd Circuit struck down a Pennsylvania law that required women seeking abortions to consult their husbands. But supporters say that Alito's varied record, affable demeanor and reputation for intellectual vigor would make him difficult to attack as an ideologue.
"The reason his name is popping up is he's probably the closest thing out there to John Roberts," said former Bush White House associate counsel Bradford A. Berenson. "And he's got even more of a full record that people on both sides of the aisle can evaluate."
Adding to the speculation were reports by those close to the process that Alito arrived in Washington Thursday night. Asked why the judge came to town and whether he was in chambers yesterday, Alito's clerk laughed and said he would have to take a message. The White House, meanwhile, declined to comment.
Bush revealed little. "Pretty soon, I'll be naming somebody to the Supreme Court," he said before departing the White House yesterday for a weekend in Camp David. Joining him aboard the Marine One helicopter were two of his key advisers on high court selections: White House Chief of Staff Andrew H. Card Jr. and Miers, who has resumed her duties as presidential counsel.
Staff writer Michael A. Fletcher contributed to this report.