The list of possible successors to Justice Sandra Day O’Connor is likely to be shaped by a volatile mix of political considerations related to sex and ethnicity, and it could be much different from the slate of contenders to replace ailing Chief Justice William Rehnquist, also thought to be mulling retirement.
Unlike Rehnquist, a reliable member of the court’s conservative wing, O’Connor was a swing voter, casting the deciding ballot in a large number of cases across a spectrum of issues including college admissions, abortion, prayer in schools and care by HMOs.
On many of these issues, O’Connor, who announced her retirement Friday, voted with the court’s liberal wing.
Depending on whom he appoints, President Bush could give the court a firm shove to the right. At the same time, the president will be under pressure to acknowledge O’Connor’s legacy as the first female justice and maintain a sense of sex or ethnic diversity with her replacement.
That would seem to reduce the prospects of the half-dozen male judges frequently mentioned as possible Supreme Court justices–J. Michael Luttig, J. Harvie Wilkinson, John Roberts Jr., Samuel Alito Jr., Michael McConnell and Emilio Garza.
Instead, Bush might find himself picking from a short list of female candidates, many court analysts believe, plus a wild card–Atty. Gen. Alberto Gonzales, a personal favorite of the president.
Although not perceived as a predictable conservative, Gonzales would allow Republicans to reap the political benefit of appointing the court’s first Hispanic justice.
A Gonzales confirmation could be hindered by his authorship, when he was White House counsel, of a legal memo in 2002 that argued Bush had the right to waive anti-torture laws.
Critics have said the memo helped lead to abuses like those at Abu Ghraib prison in Iraq. Additionally, conservatives question Gonzales’ bona fides on abortion and affirmative action.
Other names that have cropped up include three judges from the New Orleans-based 5th U.S. Circuit Court of Appeals: Edith Brown Clement, Edith Jones and Priscilla Owen.
Jones, 56, was President George H.W. Bush’s runner-up choice for the high court behind David Souter in 1990. She is a stout conservative, but her partisan background as legal counsel to the Texas GOP might lead some Senate Democrats to question her impartiality.
Clement, 57, was appointed to the federal bench by the first President Bush in 1991 and to the appeals court by the current president in 2001.
She is seen as a consistent conservative but is not a prolific writer, making it somewhat difficult to assess her judicial philosophy.
And Owen, a former Texas Supreme Court colleague of Gonzales, was among a handful of Bush judicial nominees deemed too extreme by Senate Democrats, who threatened to filibuster her confirmation proceedings.
She was confirmed grudgingly in May after centrist senators from both parties worked out a compromise that allowed most of the president’s choices to win approval.
Texan on list
Owen, 50, would be a lightning rod for pro-abortion groups because of state court rulings that narrowed conditions under which teenagers could get abortions in Texas.
Giving added ammunition to Democratic critics, Owen once was criticized by Gonzales for “an unconscionable act of judicial activism” in a ruling in a Texas abortion case. Gonzales since has said his remarks were misconstrued.
Another recent, controversial Bush appeals court appointee, Janice Rogers Brown of the District of Columbia Circuit, is another possibility, although a long shot. Brown also survived the filibuster battle.
A former California Supreme Court justice, Brown, 56, has the kind of personal story Bush finds attractive. She is the daughter of an Alabama sharecropper and would be the first black woman on the high court.
Brown has a libertarian streak in her court rulings. She has opposed government regulation in areas such as age and disability discrimination and also has ruled to limit government’s right to searches in criminal cases.
She also is seen by some as a judicial activist, meaning she will stray from a strict interpretation of the Constitution to make a point. That could make her anathema to some conservative purists, who insist the job of a justice is to render decisions based on a close reading of the Constitution.
Brown also has made provocative comments in speeches, providing plenty of ammunition for her critics. She has, for example, said that Supreme Court rulings upholding the New Deal marked “the triumph of our own socialist revolution.”
If Bush wants a so-called stealth candidate–one without a lengthy track record of federal court opinions to pick apart–he could tap Judge Diane Sykes of the Chicago-based 7th Circuit Court of Appeals.
Reputation as calm
Long before her appointment to the federal bench last June, Sykes, 47, of Milwaukee, had developed a reputation for a calm, composed judicial demeanor that earned her admiration from fellow judges and a quick ascension from Milwaukee County’s Circuit Court to the Wisconsin Supreme Court.
Her conservative credentials seem strong. She is a strict constitutional constructionist and has been active in the right-leaning Federalist Society of lawyers.
Her appointment to the 7th Circuit came with minimal controversy, although what debate it did stir came from Sykes’ perceived leniency toward anti-abortion protesters while she was a county circuit court judge.
But conservatives are unlikely to support someone with such a thin federal resume.
The last such relatively unknown nominee was Souter, who was presumed to be a conservative, but has turned out to be a reliable member of the court’s liberal wing.
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Possible replacements for Justice O’Connor
JANICE ROGERS BROWN
District of Columbia Circuit Court of Appeals judge
Previous position:
Member of the California Supreme Court since 1996. Brown was confirmed by the Senate last month to serve on the D.C. court of appeals following an agreement between Democrats and Republicans that averted a showdown over Senate filibusters of President Bush’s judicial nominees.
Age: 56
Specific issues:
– Staunch advocate of property owners
– Has advocated limits on the government’s power to search suspects.
EDITH BROWN CLEMENT
5th U.S. Circuit Court of Appeals judge
Previous position:
U.S. district judge in the Eastern District of Louisiana from 1991 to 2001
Age: 57
Specific issues:
– Viewed as reliably conservative but has participated in relatively few controversial cases.
– Legal writings don’t inspire conservatives and don’t vex liberals as much as those of other judges.
ALBERTO GONZALES
U.S. attorney general
Age: 49
Previous position:
Served as counsel to President Bush.
Specific issues:
– Has been called moderate on abortion and affirmative action issues by conservatives.
– Was opposed for the attorney general post by Democrats, who said that government policies he devised led to the abuses at Abu Ghraib prison in Iraq.
DIANE SYKES
7th Circuit Court of Appeals judge
Age: 47
Previous position:
Served as a justice on the Wisconsin Supreme Court from 1999 to 2004.
Specific issues:
– Considered a strict constitutional constructionist.
– During her nomination for the 7th Circuit Court of Appeals judgeship, Sykes was labeled “evasive” by Sen. Dick Durbin (D-Ill.) for not readily answering questions about a case in which she was criticized for being lenient toward abortion protesters.
Source: Tribune and wire report
Chicago Tribune
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Supreme Court nominating process
1. If there is a vacancy on the court, the president nominates a replacement.
2. The Senate refers the nomination to its Judiciary Committee. The 18-member committee holds hearings, which usually last several days and can include witnesses testifying for or against the nominee. The committee then votes.
3. Regardless of the outcome of the committee vote, the entire Senate then debates the nomination and votes on it. If more than half of the senators vote yes, the nominee is confirmed.
4. If a nomination is filibustered in the Senate, a three-fifths majority (60 votes) is required to end debate and force a vote.
Sources: The Alliance for Justice, U.S. Senate
Chicago Tribune
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azajac@tribune.com
