Will Bush Recycle SCOTUS Short List?

President Bush, according to the New York Times, interviewed four other candidates for the Supreme Court before picking Judge John Roberts to replace retiring Justice Sandra Day O’Connor. Like Roberts, all four are U.S. Appeals Court judges: J. Harvie Wilkinson and J. Michael Luttig of the 4th Circuit, and Edith Brown Clement and Edith Jones of the 5th Circuit.

Wilkinson spoke to the Times on the record about his interview with Bush, while all the other interviewees have kept mum.

Conservatives would be thrilled if Bush were to pick either Luttig or Jones for the next vacancy, just as they would be appalled if he were to pick Atty. Gen. Alberto Gonzales, who was also widely reported to be in the running. But the question arises: When the next vacancy comes, will Bush and his advisers go back to the short list of prospective justices from which he plucked Roberts, or will they put together a new list from scratch?

Given the poor health of Chief Justice William Rehnquist and the advanced age of some other justices, it is possible the President may need to make another choice soon.

Without confirming the candidates named by the Times, White House Press Secretary Scott McClellan told HUMAN EVENTS last week that the President did interview five finalists.

Referring to reports that the President reviewed files on 11 possible nominees before interviewing the five, McClellan said, “It was a diverse group of candidates … and you shouldn’t limit it just to that 11, because, like I said, that was a list that was fluid, that it was—people were being added to it, people were being taken off of it as we were moving forward on the nomination process. And there are certainly people that were under consideration that, as the President indicated, weren’t from the judiciary.”

Administration sources thought that was a reference by McClellan to Sen. John Cornyn (R.-Tex.) and Gonzales. One source told me that former Deputy U.S. Atty. Gen. Larry Thompson and Michigan Supreme Court Justice Maura Corrigan also made it onto the list of prospects to succeed O’Connor.

When asked whether any of these will still be on the short list when the next vacancy occurs, two Justice Department sources said it is uncertain. “Whether to go back to the previous list or start fresh is unique to particular Presidents and their Justice Departments,” said a Justice Department official. When Richard Nixon got to fill his first vacancy on the court in 1969 following the resignation of Justice Abe Fortas, for example, his list was composed exclusively of Southerners. In 1971, however, when Justices John Marshall Harlan and Hugo Black retired, Nixon’s list contained almost entirely different candidates (including California Supreme Court Justice Mildred Lillie, strongly recommended by Gov. Ronald Reagan to be the first woman on the court). In 1982, before Reagan named O’Connor to the court, his choices to replace Justice Potter Stewart were all women because of his promise to name the first woman to the Supreme Court (Lillie by then was considered too old to name). But when Reagan had other vacancies to fill in his second term, there were completely different names on the list.

Leonard Leo, executive vice president of the Federalist Society, said: “You have to realize that there never really is a short list of potential justices. Over the course of years, there’s a whole range of potential nominees and it either shrinks or is narrowed down.” Leo said he was “extraordinarily impressed with the way this administration takes judicial selection so seriously. This President really cares about the court in terms of selecting justices with a strong judicial philosophy and underpinning.” It would be “very appropriate,” said Leo, “to consider many of the people considered in the last round for the court. They reflect the President’s vision of what it takes to be a great justice.”

Gary Bauer, head of American Values, agreed. “There was a lot of talent among the individuals considered the last time,” said Bauer. “If the President wanted to set hearts beating faster and cause more liberals to buy Pepto-Bismol because they are upset over his choice, he couldn’t do much better than to pick Michael Luttig.”

Weekly Standard Editor Bill Kristol also believes some of the people on this list should be considered for the next vacancy. Like Bauer, he named Luttig. But Kristol also believes the administration should consider fresh names “because it’s a whole different situation when you’re filling another vacancy, particularly for chief justice. The President should work to get Roberts confirmed, then go back to his constituency with someone even better.”