Supreme Court
The passing of Chief Justice William Rehnquist dramatically changes the face of the battle over the confirmation of U.S. Appeals Judge John Roberts to the high court. Although the media have quickly branded Bush's decision as the safe choice, it could actually be a sign that Bush will be bold with his second Supreme Court nomination.
Bush's decision to make Roberts the nominee for Chief Justice of the United States, instead of associate justice of the Supreme Court, extends beyond the fact that Democrats, given half the summer, have failed to find a "smoking gun" that incriminates Roberts and would hurt his confirmation prospects.
We anticipated that the simultaneous retirements of Justice Sandra Day O'Connor and William Rehnquist could give Bush an opportunity to depart from his stated desire to appoint conservative justices along the lines of Clarence Thomas and Antonin Scalia. He could have potentially made three appointments - two new Justices, and an elevation of Scalia as Chief Justice. After Roberts, he could have appointed a moderate, such as Atty. Gen. Alberto Gonzales. To conservatives who object, Bush could have replied that he gave them two-thirds of what they wanted and they have no grounds to complain.
But the choice of Roberts for Chief Justice indicates that Bush may not be interested in splitting the difference - or alternatively that he is not being very clever about it. Roberts may become Chief Justice, but he has been billed and apparently sold well as the moderate O'Connor's replacement. Now conservatives will want one of their own to replace Rehnquist. The choice of Gonzales or another moderate would displease them at a time when the Bush Administration is in a popularity death spiral and needs their support more than ever.
Rehnquist's decision not to retire earlier in the summer, but to hold on until what most in Washington knew to be his imminent death, has put Bush in a much stronger position if he really does want to appoint a conservative. Having named Roberts to replace Rehnquist, Bush has an opportunity to wait until his hearings are over this week before naming the other nominee. Once Roberts is under the wire, Bush can begin the fight all over again without giving Democrats as much time to pick apart the second nominee.
The candidates for the second nomination are largely the same as those we named to replace O'Connor - the most commonly discussed are appellate Judges Michael Luttig, Edith Jones, Janice Rogers Brown, Edith Brown Clement, Emilio Garza, and Michael McConnell, along with Gonzales. One new name in the mix, passed along by reliable sources and thus worthy of note, is Michigan Supreme Court Justice Maura Corrigan.
It seems unlikely that Bush will appoint a second white male conservative such as McConnell or Luttig, yet Bush already surprised once by picking Roberts. Clement, whose views on most hot topics are the least clear, was nearly selected instead of Roberts in July, but she now appears less likely. Bush has also promised to put the first Hispanic on the court, fueling speculation around Garza and Gonzales. Sen. John Cornyn (R-Tex.) may have been floating a trial balloon for Bush on Monday when he publicly dismissed conservatives' concerns about Gonzales, a former Texas Supreme Court justice.
Another possibility - rather far-fetched, perhaps, but still a possibility - is that Bush will pick from somewhere besides the bench. The most interesting choice here is Sen. Mel Martinez (R-Fla.), a Hispanic conservative whom Senate Minority Leader Harry Reid (D-Nev.) already said he would support for the high court. Conservatives would be pleased with his nomination, as would many Hispanics. This is, however, a long shot.
