More Disorder in the Court?
If there's a Supreme Court vacancy, the Democrats will have a lot to say about it
The View From the Right
Leonard Leo of the conservative Federalist Society is already urging Bush to stick with his strategy of picking nominees that please the right, even without a GOP Senate majority. "No matter who he nominates, it's going to be a firefight," said Leo, a behind-the-scenes player in the administration's judicial nomination strategy. "What's the worst that happens? The cost of not doing the right thing is greater than a nominee going down in flames." He and others on the right believe that if the president has the opportunity, he'll nominate a woman. And the top name on their list is Edith Hollan Jones of Texas. Appointed in 1985 to the Fifth Circuit Court of Appeals in Houston by President Reagan, Jones, 57, is now a chief judge and has been on the Supreme Court shortlist since the president's father was in office.
The right touts her as a pioneer–the first female partner at a Houston law firm–and a jurist who's tough on crime. A bankruptcy law expert, Jones opposes abortion, supports the death penalty, and is as well known for her conservative ideology as for her intellect. But a Jones nomination would be acrimonious, Democrats say, citing her unfriendly rulings on employment discrimination and sexual harassment cases. (She said to a lawyer outlining how his client was sexually harassed: "Well, your client wasn't raped.") Another familiar favorite of conservatives is Janice Rogers Brown of the D.C. Circuit Court, a sharecropper's daughter who became California's first black female justice despite receiving an "unqualified" rating by the state bar's nominee evaluation commission. Raised a Democrat, Brown is now a conservative Republican and has compared liberalism to slavery. Michigan Supreme Court Justice Maura Corrigan is also a potential nominee, though seen as untested on cultural issues. Respected for her work on family law issues, she adheres to Justice Antonin Scalia's philosophy of judicial restraint.
A List from the Left
If the Democrats know whom they would support as a potential Supreme Court nominee, they aren't talking. "The minute you put somebody on your list," says a Senate aide, "they have a target on their back." But a number of moderate conservative judges emerged during the John G. Roberts and Alito hearings–some on lists compiled by progressive activists–and three are still being talked about: Bush appointees Edward Prado of the Fifth Circuit Court in San Antonio and Allyson Duncan of the Fourth Circuit in Richmond, Va.; and Sonia Sotomayor, appointed to the Second Circuit in New York by President Clinton.
Both Prado, who is Hispanic, and Duncan, who is African-American, are relative newcomers to the federal circuit and have thin records. And Prado, whom liberals have lauded for opposing mandatory minimum prison sentences and backing gun purchase waiting periods, has been criticized for being inappropriately jokey on the bench. Though they are praised by some, both judges are described by others as not ready for prime time. And conservatives view Sotomayor, also Hispanic, as a political wild card, making her nomination unlikely.
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