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Courts | As the Roberts nomination sails, attention turns to the other Supreme Court vacancy

Issue: "Rita: Strike 2," Oct. 1, 2005

Despite a klatch of recalcitrant Democrats, the Senate Judiciary Committee on Sept. 22 approved the Supreme Court nomination of John Roberts. The 13-5 vote sent his nomination to the full Senate. Sens. Patrick Leahy, Herb Kohl, and Russ Feingold were the only Democrats to vote in favor of Mr. Roberts.

But with Mr. Roberts' confirmation by the full Senate nearly assured, Beltway court-watchers had by that time already turned their attention to riskier business: who the president will tap to replace Justice Sandra Day O'Connor.

Mr. Bush on Sept. 20 met with Sens. Bill Frist (R-Tenn.), Arlen Specter (R-Penn.), Patrick Leahy (D-Vt.), and Harry Reid (D-Nev.), who pitched their own lists of candidates. But coming so quickly on the heels of the Roberts nomination, the White House already had a pre-vetted short list of its own, including:

  • U.S. Circuit Court Judge Samuel Alito, 55, a Bush 41 appointee who has ruled in favor of controls on abortion.
  • Edith Brown Clement, 57, of the 5th Circuit Court of Appeals, a member of the Federalist Society and known as a judicial conservative.
  • Reagan appointee Edith Jones, 56, another 5th Circuit Judge and a vocal conservative certain to ignite a Democratic firestorm.
  • Attorney General Alberto Gonzales, 50, whose past writings on Roe v. Wade have drawn fire from pro-family groups.
  • D.C. Appeals Court Judge Janice Rogers Brown, 56, a formerly filibustered Bush 43 appointee confirmed to the court in June after the bipartisan "Gang of 14" brokered an anti-filibuster compromise in the Senate. (Were the president to choose Ms. Brown, he would place Democrats in the untenable position of having to explain why they did not consider her an "extreme" and filibuster-worthy nominee in June but do now.)

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Mr. Bush's short list goes on, but White House aides are divided on strategy, said Manuel Miranda, an attorney and former judicial nominations counsel to Senate Majority Leader Bill Frist. "Some folks are pushing for someone less controversial, someone as telegenic as Roberts. Others are pushing for the smartest possible conservative, but one who is going to have to withstand some heat."

Regardless of whether they get such a nominee, the moment conservatives have worked toward for more than two decades still may not have arrived. Even with two rapid-fire high-court picks, Mr. Bush will not likely be able to significantly shift the court's ideological balance with these two nominations, retired Judge Robert Bork told WORLD.

On Roe, for example, the only two solid anti-Roe votes on the current court are Justices Clarence Thomas and Antonin Scalia. To reverse the 1973 decision would require three more votes, and none are likely to come from the court's liberal wing, Justices Anthony Kennedy, John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer. Mr. Roberts, if confirmed, is still something of an unknown quantity. But even if both he and Mr. Bush's nominee to replace Justice O'Connor voted with Mssrs. Thomas and Scalia, the count would likely still shake out 5-4 in favor of preserving abortion on demand.

"That's true with a lot of issues" important to social conservatives, said Judge Bork, whose name in 1987 became synonymous with Democratic obstructionism of GOP court nominees. To significantly alter the court's complexion, "Bush would have to make at least one more appointment, and that's assuming that all his appointments behaved as originalists, which I'm not at all sure is going to happen."

Two kinds of pressure face Mr. Bush now, said University of Notre Dame law professor Gerard Bradley: "Democrats will argue that the president has gotten his 'conservative' nominee through, and that it's now time for him to play ball and nominate a 'moderate,' a 'healer' who won't create division. But social conservatives have made it abundantly clear that they really want the president to deliver the goods this time, a candidate whose commitments need not be guessed at or inferred as they were with Roberts."

The money question is, to which side will Mr. Bush bow?

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