Archive for Saturday, July 2, 2005

Battle over vacancy could define Bush’s presidency

July 2, 2005


— The news was about Justice Sandra Day O'Connor. But the story is about President Bush.

How Bush manages that story, by the person he nominates to replace O'Connor, by the words he chooses to frame that debate, by the way he deals with Congress, could define his presidency almost as much as terrorism and the war in Iraq.

And the impact on American life could last a generation. The most contentious, difficult and profound issues facing the country - life and death, science and faith, global commerce and crime - are likely now to be shaped by a court that has Bush's signature.

The president, even with sagging approval ratings and diminishing support for the war and his handling of the economy, finds himself in an extraordinarily powerful position with Republicans controlling the executive branch and Congress. Now he will be extending that leverage to the Supreme Court.

O'Connor's resignation was a surprise, to be sure, but not entirely unexpected, and yet it forces a different kind of decision-making for the president. In many respects, naming a replacement for Chief Justice William Rehnquist - considered far more predictably conservative than O'Connor - would have been easier, a judicial form of a zero sum game.

The argument simply would have been over whether the nominee was too conservative. And given Rehnquist's failing health, Bush might get the chance anyway.

Short list of candidates bush may pick to replace o'connor

¢ Samuel A. Alito, 55, has been a strong conservative voice in his 15 years on the Philadelphia-based 3rd U.S. Circuit Court of Appeals. ¢ Emilio Garza, 58, sits on the New Orleans-based 5th U.S. Circuit Court of Appeals and was considered for a Supreme Court seat by the first President Bush. ¢ Alberto Gonzales would be the first Hispanic to serve on the nation's highest court. He achieved another first when he was made attorney general. ¢ Conservative Edith Hollan Jones is there because Sandra Day O'Connor's retirement raises the possibility that Bush would nominate a woman. ¢ The 51-year-old J. Michael Luttig is considered a solid conservative choice. The Texas native has served on the 4th U.S. Circuit Court of Appeals in Richmond, Va. ¢ Michael McConnell, a judge on the Denver-based 10th U.S. Circuit Court of Appeals, enjoys bipartisan support in the academic community. ¢ John G. Roberts was associate counsel to President Reagan and then served in the first Bush administration, arguing cases before the Supreme Court. ¢ J. Harvie Wilkinson III, 60, another prospect from the 4th Circuit, has been conservative in his rulings since being put on the court by President Reagan.

Replacing O'Connor forces the president to confront not merely judicial philosophy but also the court's diversity. Bush's support among suburban women has been ebbing since the election. And it is likely that, because O'Connor was largely seen as the swing vote that preserved abortion rights, the nominee's views on abortion could become a central issue during Senate confirmation hearings.

If so, Bush would face unrelenting pressure from both sides of the divide.

Social conservatives have often felt betrayed by none other than Ronald Reagan (who appointed O'Connor to the high court) when it came to abortion. And though Bush has sided with them on nearly every issue of concern - from prohibiting embryonic stem-cell research to interceding in the Terri Schiavo case to winning passage of a ban on certain late-term abortions - the president's rhetoric about support for a "culture of life" will now be put to an ultimate test.

He will face pressure from the left as well, with at least equal zeal, as liberals try to frame the debate as the ultimate fight over a woman's right to make a choice on abortion. And he will face pressure from the moderate center, particularly in the GOP, that favors abortion rights but doesn't really like a discussion of it in the public square.

It has been clear for some time that by a margin of greater than 2-to-1 Americans don't want to see the landmark case Roe v. Wade completely overturned. For his part, the president has never specifically said that it should be, either.

The president might have a fight that he would rather avoid, despite all the strong signals he has sent to conservatives that their cause is his as well.

But if the sense of certitude that he has brought to his other decisions is on display with his choice of a nominee for the court, it might be a battle he embraces. From the day Bush took office, it was no secret that several of the justices were ailing and a retirement was almost certain. The president's team has been war-gaming its options on the court for years.

The only surprise was that it took this long.

This president has never shown a propensity for caution. So for those who believe he would feel compelled to make a one-for-one replacement based on ideology or judicial temperament, another surprise might be in order.


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