Supreme Fight to the Finish
Big bucks, bad blood--a court battle like no other
Wendy Long and her colleagues at the conservative Judicial Confirmation Network were ready to pounce the moment Supreme Court Justice Sandra Day O'Connor announced that she was resigning. "We expected a nominee," she says, "very shortly after a resignation."
But in ways big and small, this summer's evolving Supreme Court drama is refusing to follow the script. For one thing, it looks as if President Bush has decided to wait a few weeks before naming someone to fill the O'Connor vacancy. And the fight between the White House and Christian conservatives over one possible candidate, Attorney General Alberto Gonzales, has gotten downright uncomfortable. A close friend of the president (who has made no secret of his desire to name a Hispanic justice), Gonzales has been openly attacked by members of the Christian right, who say he is simply not conservative enough on issues like abortion. The criticism has clearly rankled the president--who sharply criticized those bad-mouthing Gonzales last week. Meanwhile, rumors continued to fly that Chief Justice William Rehnquist, who has been battling thyroid cancer, might be ready to call it quits. That would give Bush two openings on the nation's high court and the chance to name a new chief justice while satisfying multiple constituencies. At week's end, only a couple of things were clear: The president seemed likely to move the Supreme Court to the right, and the whole struggle, in the words of a former presidential adviser, was "becoming a big jigsaw puzzle."
Or one heck of a battle. Liberal interest groups, stunned by O'Connor's decision, began to regroup for a battle that now could be waged over two nominees. Conservatives mused about how two vacancies could be used to move the court quickly and firmly to the right while possibly satisfying the religious right and, to make peace with the White House, accommodating Bush's desire to name the court's first Hispanic justice.
"Pushback." Making peace might not be so easy, though. Visibly irritated last week, Bush chastised groups for attacking his "good friend," Gonzales, signaling he wasn't about to be rolled, even by conservative Christians who turned out for him in droves in November. "There's a pushback" by the White House, says John Green, an expert in evangelical politics at the University of Akron, suggesting that part of Bush's scolding was a strategy "to separate the president from Christian conservative groups."
A Gonzales appointment would contribute to Bush's legacy while reflecting the growing influence of the nation's burgeoning Hispanic population. At least 40 percent of Hispanics who voted in the 2004 presidential election marked their ballot for Bush, the first Republican in six elections to capture more than 30 percent of the Hispanic vote. "This is a big part of the president's legacy," says Republican strategist Leslie Sanchez.
Bush, who wants a new justice in place by the October start of the court's new term, took files of potential nominees with him to last week's Group of Eight summit in Scotland and is expected to name his choice in August. Administration sources say he is dealing with more than a half-dozen serious contenders; the fact that O'Connor has resigned before Rehnquist, they said, has scrambled the calculus. "I wouldn't just look for a white male, right-wing lawyer," says a senior Republican who advises the White House on strategy.
But many conservatives say they're confident Bush will chart a more conservative course for the court. "The president's nominees to the appellate courts have been originalist, as far as we can tell," says Tom Minnery, vice president for public policy at Focus on the Family. "That indicates that he's got great conviction about sending the right candidate through the confirmation process."
Still, Minnery doesn't welcome friction between groups like Focus and the Bush administration. "Now we're pitted against the White House, and I regret that," he says, blaming news reports about the Christian right's grievances over Gonzales that overlooked the right's enthusiasm about Bush's reiterating his pledge to support conservative justices like Antonin Scalia and Clarence Thomas.
"Litmus test." On the left, the liberal MoveOn PAC has pounced on the apparent discord between the White House and the religious right, arguing that the Christian right does not speak for mainstream Americans. "They have a litmus test, and Bush wants them to be quiet because they are very specific about rights they want to take away," says Ben Brandzel, MoveOn's advocacy director. "They want to tell families how to live, how to die, how to worship."
C. Boyden Gray, the head of the Committee for Justice, an organization founded in part to promote Bush's judicial nominees, says that dissension on the right isn't "a bad thing--it shows that it's not a monolith, that we're not in lockstep." Gray says the "western conservative values" embodied by O'Connor and valued by Bush on issues like property rights and employer rules are more important to most Americans than abortion, though he predicted that the nomination fight will be about abortion. "It's not avoidable," he says.
But business interests have their own priorities. Former Michigan Gov. John Engler, now president of the National Association of Manufacturers, says his members want a justice friendly to their effort to rein in legal costs. "We've done a pretty good job in legislative bodies trying to fix legal problems," Engler says, "but every time we go to federal court, they're throwing out our answers and solutions."
While much of the focus over the past week has been on the religious right's criticism of Gonzales, the president may also feel pressure to name a woman to replace O'Connor. The names of 10th Circuit Court Judges Edith Jones and Edith Brown Clement have been mentioned frequently over the past week.
Others see different pressures. Former Attorney General Edwin Meese, who is working with Gray to help push Bush's judicial choices, is "looking for someone who is faithful to the Constitution, regardless of who retired." Nancy Keenan, president of NARAL Pro-Choice America, says it's also not about "whether you wear a skirt but if you understand women's lives."
The stakes are sky high. Both sides are gearing up to spend as much as $100 million on a nomination battle, or battles. Now many are waiting to see what, if any, role the "Gang of 14" --the seven Democrats and seven Republican senators who combined last month to thwart the "nuclear option" that would have ended Democrats' ability to filibuster judicial nominees--will play. In exchange for Republican votes against the rules change, the Democrats agreed that they would filibuster a Bush nominee only under "extraordinary circumstances." Whatever that means.
Now, some say, the alliance has turned fragile. Before a meeting of the group this week, Democrats and Republicans are expected to first gather separately, and there is likely to be disagreement over the meaning of "extraordinary circumstances." The White House has been courting moderate Nebraska Democrat Ben Nelson, and a spokesman for Arkansas Democrat Mark Pryor, another member of the group, says a confirmation battle could strain the agreement.
Administration strategists say the president will wait as long as possible to make a nomination to avoid giving Democrats and liberals a target. Whatever happens, Bush enjoys an advantage his father didn't when he chose Thomas for the high court: Republicans control the Senate today and will push a hurry-up schedule for hearings and a vote. That much, at least, seems certain.
POTENTIAL NOMINEES
Candidates thought to be on the president's "short list":
Judge Michael McConnell, 10th Circuit, Salt Lake City
Judge Michael Luttig, Fourth Circuit, Alexandria, Va.
Judge John Roberts, District of Columbia Circuit
Judge Samuel Alito Jr., Third Circuit, Newark, N.J.
Alberto Gonzales, U.S. attorney general
Judge Edith Jones, Fifth Circuit, Houston
Judge Emilio Garza, Fifth Circuit, San Antonio
This story appears in the July 18, 2005 print edition of U.S. News & World Report.