President Bush, eager to put a bruising brawl within his own party behind him, is expected to announce his new pick for the Supreme Court within days.
Bush has offered no hint about his thinking on a new nominee, but he isn’t starting from scratch. The president already has vetted and interviewed several candidates, and White House officials wouldn’t rule out the possibility that an announcement could be made as early as Friday.
Bush said Miers, the White House counsel, was the most qualified candidate to replace retiring Justice Sandra Day O’Connor. But for three weeks, his fellow conservatives criticized the Texas lawyer and loyal Bush confidante for having thin credentials on constitutional law and no proven record as a judicial conservative.
That could point Bush back to a slate of federal appellate judges often mentioned as top contenders. That list includes Samuel Alito, J. Michael Luttig, J. Harvie Wilkinson, Alice Batchelder, Priscilla Owen and Karen Williams as well as Michigan Supreme Court Justice Maura Corrigan.
Miers’ lack of judicial experience was not the key reason the president’s supporters opposed her.
Bush had trumpeted his decision to pick someone outside the “judicial monastery” and boasted Miers would offer a “fresh approach” to the court. Instead, Miers’ critics complained there was no clear record to suggest how she would interpret the Constitution — something that is expected to be more evident with his next nominee.
Bush might also turn to a current or past senator, such as Republican John Cornyn of Texas, because the Senate would be more likely to embrace one of its own.
Other prospective candidates who are not judges include Maureen Mahoney, a frequent litigator before the high court. She sometimes is referred to as the “female version” of John Roberts — Bush’s choice for chief justice, who was confirmed by the Senate 78-22.
Still another is PepsiCo attorney Larry Thompson. Bush likes and trusts Thompson, who as deputy attorney general was the highest-ranking black law enforcement officer in Bush’s first term. Thompson, however, might be tagged like Miers as someone beholden to the White House.
Bush, who leaves on a trip to Argentina, Brazil and Panama on Thursday, has said he’ll make his next nomination in a “timely manner.” Senate Majority Leader Bill Frist said he expected an announcement within days, with confirmation hearings perhaps before Christmas.
Brad Berenson, a former staff member of the White House counsel’s office in the Bush administration, said he thinks the president is likely to return to a short list of candidates that both the left and right agree are the most qualified.
“My own view is that we probably will not get any of the individuals who are the very top of the Democrats’ hit list,” Berenson said. “I think he’s going to try to repeat his experience with John Roberts — someone who can be confirmed without touching off battle royale.”
The White House said it was not the firestorm of opposition from Bush’s right flank, but the Senate’s demand for documents covered by attorney-client and executive privileges that forced Miers’ withdrawal. Both these reasons might make Bush wary of choosing Attorney General Alberto Gonzales, a longtime ally.
As with Miers, senators would seek documents Gonzales handled in his previous post as White House counsel, and the White House again would claim executive privilege to deny their release.
Nominating Gonzales also would re-ignite the very opposition Bush is trying to dampen on the Republican right, which doesn’t think Gonzales is a reliable conservative vote on abortion and affirmative action.
Darling of the right?
Fearing that Bush’s next pick will be a darling of the right, Ralph Neas, president of the liberal People For the American Way, urged Bush to resist calls for an ultraconservative and pick someone with a mainstream legal philosophy.
“The president must not let the extreme right dictate his next choice, but instead choose a nominee who can bring us together and maintain a fair and independent balance on the Supreme Court,” Neas said.
With his job approval rating the lowest of his presidency, Bush may feel it is necessary to appease his base, especially with the possibility that members of the White House staff may be indicted in the CIA leak investigation.
“They are clearing the decks,” said Hamilton College government professor Philip Klinkner, who believes the White House would have trouble responding to indictments and defending Miers at the same time. “This means that the Miers withdrawal becomes a page two story, limiting its political damage. Finally, they can nominate someone who will rally their base, rather than divide it.”
Ironically for conservatives, Miers’ withdrawal extends the tenure of O’Connor, whose vote has been decisive on 5-4 rulings that upheld abortion rights and affirmative action and limited the death penalty. Some of those issues are on the upcoming court calendar.