President Bush appears poised to announce a new Supreme Court nomination Monday, moving quickly after a weekend of consultations to put forward a replacement for the ill-fated choice of Harriet Miers in hopes of recapturing political momentum, according to Republicans close to the White House.
Judging by the names the White House floated by political allies in recent days, Bush seems ready to pick a candidate with a long track record of conservative jurisprudence -- one who would mollify the Republican base, whose opposition to Miers's nomination helped scuttle it. Several GOP strategists said the most likely choice seemed to be federal appeals Judge Samuel A. Alito Jr., with judges J. Michael Luttig and Alice M. Batchelder also in the running.
Any of the three would draw support from many conservative activists, lawyers and columnists who vigorously attacked Miers as an underqualified presidential crony. At the same time, those three have years of court rulings that liberals could use against them. Senate Minority Leader Harry M. Reid (D-Nev.) said yesterday that he has already warned the White House that nominating Alito -- who is often compared to Justice Antonin Scalia -- would "create a lot of problems."
Searching for a boost
Republican lawmakers and strategists said a swift nomination with a consolidated party behind him would represent an important first step for the president in a strategy to pull out himself of a political ditch. With the withdrawal Thursday of Miers's nomination, the mounting death toll in Iraq and the indictment Friday of top vice presidential aide I. Lewis "Scooter" Libby, Bush has hit an all-time low in public approval ratings and wants to start a new chapter in his troubled second term.
"Presidential problems aren't going to be solved overnight," said a GOP strategist with ties to the White House, "but a Supreme Court nomination is a big event . . . and moving forward with nominating someone consistent with what the president talked about in the last two campaigns is part of" the solution.
Bush spent the weekend at Camp David huddled with Miers, who remains his White House counsel and is therefore in charge of the judicial selection process, along with Chief of Staff Andrew H. Card Jr., who originally advocated Miers as the first choice to replace retiring Justice Sandra Day O'Connor. As the three talked, White House officials contacted prominent conservatives to test the reaction to various candidates.
Key conservative allies consulted
One group consulted was the Concerned Women for America, whose decision to oppose Miers last Wednesday became one of the final blows to help kill the nomination. Janet M. LaRue, the group's chief counsel, said it received a call from the White House on Saturday and liked what it heard.
"Alito and Luttig have always been at the top of our list," she said in an interview. "We think either of them would be a supreme pick. There isn't a thing stealthy about them. They've got a long, proven record of constitutional conservatism."
Other conservatives yesterday also embraced Alito, in particular. "Alito, Luttig -- all these people are solid conservatives," Sen. Lindsey O. Graham (R-S.C.) said on CBS's "Face the Nation." On CNN's "Late Edition," Gary L. Bauer, president of a conservative group called American Values, described his criteria for a Supreme Court justice and added, "Certainly, Judge Alito fits those characterizations."
Democrats ready to do battle
Senate Democrats, who largely kept quiet during Miers's nomination to enjoy the Republican civil war it spawned, signaled they would come off the sidelines in the case of a more vocal conservative nominee.
"If he wants to divert attention from all of his many problems, he can send us somebody that is going to create a lot of problems," Reid said of Bush on CNN. "I think this time he would be ill-advised to do that. But the right wing, the radical right wing, is pushing a lot of his buttons, and he may just go along with them."
Sen. Charles E. Schumer (D-N.Y.), a liberal member of the Judiciary Committee, held out the possibility of a filibuster, although he said it is too early to judge.
"If it's going to be a nominee who is way, way out of the mainstream, who wants to use the courts to change America -- something conservatives have always been against, at least in the past -- there's the possibility of a filibuster," he said on "Face the Nation."
Floating names as a test?
In seeking out a new nominee, Bush appears to be less focused on finding a woman to replace O'Connor, the nation's first female justice, and has returned to what he has derisively called "the judicial monastery" for his candidates. The names in play as he prepared for his announcement have long histories on the federal appeals court. Alito, Luttig and Batchelder, in fact, were appointed by President George H.W. Bush 14 to 15 years ago.
The fact that Bush aides were circulating those names over the weekend does not guarantee that he will pick one. Republican strategists wrongly assumed that Judge Edith Brown Clement, of the U.S. Court of Appeals for the 5th Circuit, would be named in July, based on what White House aides had said; instead, Bush chose Judge John G. Roberts Jr. Aides could have been asking about Alito and the others to gather information for the president without tipping his hand.
But the White House appeared intent on avoiding a repeat of the Miers fiasco and on testing reactions among conservative activists before making an announcement, rather than pulling a surprise. The feedback it got may have reassured the White House that it can reassemble its conservative coalition despite the family feud over Miers.
Emphasis on experience, conservatism
"They're really focused on quality," said a strategist close to the White House, who like others asked not to be named to preserve relations with Bush aides. "One of the things that all parts of the spectrum made clear was they wanted quality. So I think what you'll see is someone really well-credentialed."
Another outsider adviser said: "To the extent that quality is the issue, that would argue for Alito."
Alito, 55, studied at Princeton and Yale, and has sat on the U.S. Circuit Court of Appeals for the 3rd Circuit, based in Philadelphia, since 1990. Nicknamed "Scalito" by some who compare him to Scalia, the high court's prime conservative intellectual force, Alito has built a record as an incisive skeptic of liberal constitutional theory.
He voted to uphold a Pennsylvania law that required a woman to notify her husband before an abortion -- a law rejected by the Supreme Court -- and wrote a decision upholding a city holiday display that included a creche and menorah as well as secular symbols.
Luttig, 51, a graduate of Washington and Lee and the University of Virginia, has been since 1991 a conservative mainstay of the Court of Appeals for the 4th Circuit, based in Richmond. Like Alito, he is known for his sharp intellect and occasional skirmishes with fellow conservatives over principle. He wrote a ruling striking down part of the Violence Against Women Act that allowed women to sue attackers, sided with the government in terrorist-detention cases and upheld a Virginia law restricting what opponents call partial-birth abortions that was later struck down by the Supreme Court.
Batchelder, 61, another graduate of Virginia's law school, has served on the Cincinnati-based 6th Circuit since 1991, after six years as a district judge. She voted to uphold Ohio's partial-birth abortion ban and voted against the University of Michigan's affirmative action program. She also sat on a case involving Wal-Mart even though her husband owned company stock, for which she later admitted error -- an issue that initially caused White House concern about nominating her.