Familiar names, fresh faces among options
WASHINGTON -- Top grades at an elite law school. A Supreme Court clerkship. A long tenure on the bench. A solid conservative record.
After the failure of Harriet Miers's politically disastrous Supreme Court nomination yesterday, President Bush is increasingly likely to pick a replacement who is the anti-Miers -- someone with a long record on constitutional issues and whose views point to the right on abortion, gay rights, and other social matters, many liberals and conservatives agreed yesterday.
''It's a good day to be a 50-year-old conservative federal judge with impeccable credentials," said Jack Balkin, a Yale Law School professor. ''You might just get a promotion."
Miers's withdrawal yesterday, amid criticism of her lack of expertise in constitutional law and her lack of a track record on social issues, launched yet another round of Supreme Court speculation, the third in just five months.
While many of the names floated were familiar from previous Supreme Court vacancies -- appeals court judges Priscilla Owen, J. Harvie Wilkinson III, and Emilio Garza, for instance -- there were also a few fresher names gaining prominence.
Among them were appeals court judge Karen Williams, whose candidacy is quietly being encouraged by several GOP senators, and attorney Maureen Mahoney, who was a deputy solicitor general in Bush's father's administration and a clerk for the late chief justice William Rehnquist.
Democrats have previously threatened to use Senate rules to block some of the candidates who are again under consideration, saying their views are out of the mainstream. In choosing Miers and Chief Justice John G. Roberts Jr., Bush seemed eager to avoid such a fight. But now, in forcing Miers to withdraw, conservative activists urged the president to wage a full-out culture war with the political left over an openly conservative justice.
Gary Bauer, an influential leader of the religious right, said in an interview that Bush can reunite conservatives if he picks a nominee as conservative as Justices Antonin Scalia and Clarence Thomas.
''The president shouldn't care what [liberals] say," Bauer said in an e-mail to supporters. ''They are desperate to keep their grip on the courts that have forced abortion-on-demand on the country and are trying to force same-sex 'marriage' on us now. The president should not avoid a fight with these senators -- he should welcome it."
Liberal activists said they feared that Bush would accede to conservative demands after his ''total and abject capitulation to the extreme right," as People for the American Way president Ralph Neas described the withdrawal of Miers's nomination.
Nan Aron, president of the liberal Alliance for Justice, said, ''Bush is obviously under tremendous pressure by the right wing to choose a candidate who will fulfill their hopes and dreams for the judiciary."
Balkin, however, said Bush might not want to pick the fight that conservative activists are calling for.
''What's in the best interest of the president and the Republican Party is probably to pick a nominee who can easily be confirmed and who will do the Supreme Court proud, and that is not necessarily the purest ideological warrior," he said. ''It might and probably would be a mainstream conservative -- someone the Democrats would not be delighted with, but who they would accept as the price of losing a presidential election."
Prior to nominating Miers earlier this month, Bush said he was concerned about diversity on the court in filling the seat of retiring Justice Sandra Day O'Connor. Analysts predicted yesterday that women and minority candidates will still have an edge, but having shown his commitment to diversity by nominating Miers, Bush may now feel freer to consider a white male appeals court judge.
Balkin mentioned appeals court judges Wilkinson and Michael McConnell, both white men who are widely respected conservatives, as possible frontrunners, although he emphasized that ''there are a number of qualified women on the appeals courts."
Others suggested that Bush may want to reward the few conservatives who stuck with him during the Miers fight by giving the nod to either of two highly conservative appeals court judges, J. Michael Luttig and Samuel Alito. Both of the men, who are white, are favorites of the influential Federalist Society, whose executive vice president, Leonard Leo, was a key Miers supporter.
But several analysts said they think Bush would still look first to conservative women or minorities, such as appeals court judges Owen, Edith Jones, Alice Batchelder, and Janice Rogers Brown -- who would be the high court's first black female justice. All were considered possibilities when Bush nominated Chief Justice John G. Roberts Jr. and Miers, but their conservative credentials may tip the scales this time around.
Also in circulation again were the names of Larry Thompson, the black former deputy attorney general who is now a
Surveying the landscape, Manuel Miranda of the conservative Third Branch Conference said each candidate had political advantages and disadvantages.
Thompson, for example, has never been a judge and thus lacks the conservative record demanded by many activists, Miranda said. But Jones and Garza, who have strong conservative credentials, have each written that they think Roe v. Wade, the 1973 case establishing abortion rights, was wrongly decided, which would infuriate Democrats
''Edith Jones is still heavily favored," Miranda said. ''But if you are going to do Edith Jones, you may as well do Emilio Garza, because they both have the same downside, which is they've written directly on Roe. So if you're going to break that barrier, you might as well pick the first Hispanic."
Another Hispanic who was touted as a possible pick in previous rounds is Attorney General Alberto Gonzales. But several conservatives said yesterday they think Gonzales cannot be in the running. Gonzales preceded Miers as White House counsel and would be vulnerable to the same requests for sensitive documents that stymied her nomination.
