With Senate confirmation of Judge John G. Roberts Jr. as chief justice virtually assured, the struggle for the Supreme Court returns to replacing retiring Justice Sandra Day O’Connor. The belief in legal and political circles is that President Bush will name a conservative woman, and the front-runner is Federal Appellate Judge Priscilla Owen (5th Circuit, Austin, Texas).
According to White House sources, Bush met secretly with Owen last week. While not decisive evidence, this was no mere get-acquainted session beginning a long exploration. The president knows and admires his fellow Texas Republican. The countervailing political pressure on Bush is to name a Hispanic American, and Attorney General Alberto Gonzales is a Texas Republican the president knows and likes even better than he does Owen. But signals last week that he might name Gonzales probably should not be taken seriously.
Bush’s original nomination of Roberts to replace O’Connor would have moved the court to the right, but it would not have been decisive because of uncertainty over Chief Justice William Rehnquist’s future. Roberts for Rehnquist is a conservative replacing a conservative. That leaves open whether a conservative affecting the court’s orientation for a generation shall replace O’Connor, a pro-choice social liberal.
Appellate Judge Edith Clement (5th Circuit, New Orleans) was the runner-up to Roberts in the first selection process, but the word in legal circles is that she did not do well in her interview with the president and now is out of the picture. Appellate Judge Edith Jones (5th Circuit, Houston) has been mentioned for the Supreme Court for a decade and at 56 is near the outer age limit. New names are Appellate Judge Karen Williams (4th Circuit, Orangeburg, S.C.), one of the most conservative federal judges, and Michigan Supreme Court Justice Maura Corrigan.
Priscilla Owen is viewed as the strongest choice and, at age 50, able to guarantee a conservative court for 20 years. She was a petroleum industry lawyer in 1994 when Republicans tapped her to run for the Texas Supreme Court. She and George W. Bush, candidate for governor of Texas, sometimes campaigned together, with Karl Rove their mutual consultant. Owen was considered non-controversial when Bush selected her for the Appeals Court in 2001, but a wide-ranging Democratic filibuster delayed her confirmation for four years.
If Owen is nominated a month from now, she will have had little more than four months on the federal appellate bench. But that is twice as much appellate time as Justice David Souter had before going on the Supreme Court. Approved only 55 to 43 for the 5th Circuit, Owen would face bitter opposition for the higher court. But so would any of the other conservative women acceptable to Bush.
In contrast, Democrats say they accept Gonzales (though they opposed him for attorney general on Iraq-related issues). That worries Christian conservatives who suspect Gonzales is weak on abortion and affirmative action and were alarmed by developments last week.
At last Tuesday’s Cabinet meeting, the president said the list to replace O’Connor was “wide open,” adding that “should create some good speculation here in Washington. And make sure you notice when I said that I looked right at Al Gonzales, who can really create speculation.” A day earlier, Republican Sen. John Cornyn, a close Bush ally, said Gonzales would be “a very good nominee” and described “concerns from some conservatives” as “strange ideas.”
Was what Cornyn said prompted by Bush? “No, it was not,” the senator replied to me. “I was not being a stalking-horse.” As for Bush’s remarks, when seen on camera rather than just reading them in print, they suggested that the president was just kidding. Nevertheless, anticipatory outrage expressed by pro-life Republicans suggests the problem Bush faces with his base that supported him in the belief he would transform the Supreme Court.
Sen. Edward M. Kennedy, relentlessly leading the Democratic campaign, last week tied John Roberts’s “advice” as a young aide to disparities between rich and poor that he said were revealed by Hurricane Katrina. If Kennedy goes that far on a nominee whose confirmation is not really in doubt, imagine what he might say about Priscilla Owen.