President Bush could rein the court to the right by nominating a bedrock conservative to replace the retiring Justice Sandra Day O’Connor.
He could make history — and perhaps pick up votes for the GOP — by naming the first Hispanic to the court. Or he could choose a woman and keep intact the court’s current balance of seven men and two women.
Bush has had nearly five years to consider how to burn the “G.W.B” brand on the bench of the highest court in the land.
Regardless of whom he picks, the closely divided court, which often splits 5-4 on key decisions, will very well end up with a more conservative bent.
The question is, how far to the right will the post-O’Connor court be? And how much farther to the right will it lean once the 80-year-old Chief Justice William H. Rehnquist, who is sick with thyroid cancer, retires and possibly gives Bush a second chance to shape the court?
Gonzales too moderate?
Legal experts on both sides speculate that the retirement of O’Connor raises the prospect that Bush will name Attorney General Alberto Gonzales. He is not a favorite of conservatives, who continued to target the White House this weekend in their anti-Gonzales campaign, saying his views on issues such as abortion and affirmative action are not aligned far enough to the right.
“When the right looks at Judge Gonzales, they have tended to worry they are getting another David Souter,” Brad Berenson, a White House lawyer during Bush’s first term, said about how conservatives were disappointed when Justice Souter sides with the court’s more liberal members. “I don’t personally think that’s fair, but that is their view.”
Gonzales’ confirmation hearing for the Justice Department job focused on his role in developing the administration’s policy on the interrogation and treatment of suspected terrorists. It is an issue sure to dominate hearings should he turn out to be Bush’s first nominee to the Supreme Court.
Yet, Gonzales is a loyal friend of the president’s — and Hispanic, a member of one of the fast-growing voting blocs. Bush might be willing to accept a chilly reception from his far-right constituency to make history, reward a friend and lessen the chance of having a more conservative nominee blocked in the Senate.
O’Connor threw Bush a curveball
Bush’s options were rearranged when it was O’Connor, not Rehnquist, who announced she was stepping down last week.
“Will politics be considered?” said Berenson, a former Supreme Court clerk. “Will factors like the diversity of the court and a justice’s life story be considered? Sure. But I don’t think those things are going to drive the decision.”
Intellect. Character. Judicial philosophy. The prospect of being able to win Senate confirmation. Those are the overriding issues that several legal experts and advocates on both the right and left think will guide the president, who is facing intense pressure from both sides of the political aisle.
Because Rehnquist sits on the conservative side of the court, replacing him with another conservative would not have shifted the balance of power on the nine-member court.
The same cannot be said of O’Connor. She has been the critical fifth vote on abortion and other contentious issues involving privacy, equal opportunity, the environment and religious rights.
“It is dramatically different with O’Connor retiring,” Ralph Neas, president of the liberal People for the American Way, said Saturday. “Replacing the conservative O’Connor with a right-wing ideological would be a constitutional catastrophe.
“A right-wing appointment could turn back the clock seven decades on so many fundamental rights and liberties and legal protections that most Americans think are theirs forever,” Neas said. “These are rights and liberties and protections that could disappear overnight if a right-wing majority takes control of the court.”
Activists weigh in
Neas’ group on Saturday unveiled a television ad, set to run on national cable news and in selected media markets starting Tuesday, that asks whether Bush will choose a justice who protects fundamental rights and freedoms. It ends with the message targeted squarely at Bush: “May you choose wisely, Mr. President. The eyes of history are upon you.”
Both the liberals and conservatives, who say Neas is exaggerating the potential change to the court, think they have the upper hand in persuading Bush to see it their way. Yet the president’s independent streak might make him impossible to sway.
Advocates on the right argue that he must make good on a pledge to name a justice who would vote in the same way as conservative Justices Antonin Scalia and Clarence Thomas. They believe in a strict interpretation of the Constitution that is not affected by cultural or social trends.
Liberals say that given O’Connor’s swing position on the court, Bush must choose a moderate conservative — a move that would risk alienating his far-right base but would avoid a nasty confirmation battle with Democrats.
Tough choices for both sides
Indeed, Democratic senators might be uneasy about voting against a woman or a minority such as Gonzales or Samuel Garza, a Hispanic on the 5th Circuit Court of Appeals.
There’s no doubt a confirmation fight would be contentious if Bush nominates individuals thought to be on his short list: conservative federal appellate court judges Samuel Alito, J. Michael Luttig, Michael McConnell, John Roberts Jr. and J. Harvie Wilkinson III.
But American University historian Allan J. Lichtman says naming an extremely conservative nominee could backfire on the president because it might prompt Justice Anthony M. Kennedy, a moderate conservative who also has been a swing vote on the court, to inch away from the right.
“That could push Kennedy into the O’Connor slot,” Lichtman said.