For high court, Bush seeks 'a certain temperament'


President Bush and his White House staff typically say little when asked about possible Supreme Court nominees. There is no opening on the court, they point out, so there is no reason to talk about replacements.

But amid rampant speculation that Chief Justice William H. Rehnquist will announce his retirement when the court finishes its term this month, the president offered a hint this week of how he would fill the seat.

"I look forward to talking to members of the Senate about the Supreme Court process, to get their opinions as well, and will do so," President Bush said at a news conference Tuesday. "I told the American people I would find people of a certain temperament that would serve on the bench, and I intend to do that."

Some legal scholars and attorneys say the president may already have found the person, likely selected from what for the past five years has been a relatively short list of Supreme Court contenders.

And, they say, Bush might not care if the pick makes what is expected to be one of the most bitter confirmation proceedings in recent history even more contentious.

More so than his predecessor, Bill Clinton, or his father, George Bush, the current president has looked to the lifetime appointments he has made to the federal judiciary as a way to have a lasting ideological effect on the nation's laws, said David M. O'Brien, a political science professor at the University of Virginia and author of the book Storm Center: The Supreme Court in American Politics. Nowhere would the effect be more visible than on the Supreme Court.

"I see no reason to expect or predict that he is going to compromise, and if he did compromise, he would get a lot of flak from his core constituents," O'Brien said. "He's going to go to the mats."

The most often mentioned candidates are a group of federal appellate judges - all male, staunch conservatives - who would be unlikely to change the political makeup of the court if one were to take the seat Rehnquist has held for 33 years, the past 18 as chief justice.

Who will be chief?

Much of the intrigue surrounds whether Bush would elevate a current member of the court - Antonin Scalia or Clarence Thomas - to the chief's post, setting the stage for two confirmation battles against the backdrop of the Senate's recent standoff over judicial nominees.

Douglas W. Kmiec, a constitutional law expert at Pepperdine University who was a top Justice Department official under President Ronald Reagan and the first President Bush, said the simmering Senate feud over federal judges has prompted some conservatives to push for "Scalia and Thomas, and no one else," for the chief's post.

"Certainly, if you had a scrappy, intellectually able Antonin Scalia, part of the calculus would be: If he can't survive [the confirmation process], then no one can," Kmiec said.

An aging court

There has been plenty of time to consider options.

The nine members of the court have not changed in 11 years, the longest period without a new justice since the early 1800s. When he took office in 2001, Bush was widely expected to have at least one pick in his first term as the court's members grew old together. Only Thomas, at age 56, is under 65.

"Part of this that's so unique is, everybody has been waiting for this one for so long," said Trevor Parry-Giles, a political communications professor at the University of Maryland, College Park and the writer of a book about rhetoric in the Supreme Court nomination process.

"Historically, short lists have almost always been wrong," he cautioned. "No one would have seen [Justice] David Souter coming out of the woodwork."

Rehnquist was a virtually unknown Justice Department official when nominated by President Richard M. Nixon in 1971 after two other possible picks were rejected.

That has not quelled the rumors, which gained urgency after Rehnquist announced in late October that he had thyroid cancer and then was absent from the bench for five months during treatment. Rehnquist, 80, returned to the bench in March and has kept up a steady workload. Among other things, he wrote this week's unanimous opinion overturning the criminal conviction of Enron auditor Arthur Andersen, but is widely expected to step down soon.

Review and consult

Talking to reporters Tuesday, Bush did not mention Rehnquist but gave a broad outline of how he would approach the task of filling a Supreme Court vacancy and emphasized that he would consult with the Senate in making the choice.

"Here's my process: One, I'm obviously going to spend a lot of time reviewing the records of a variety of people and looking at their opinions and their character, and will consult with the members of the United States Senate at the appropriate time," Bush said. "I know there's been a lot of talk about consultation between the White House and the Senate, and we do consult."

An unofficial list

White House staff and advisers have completed much of that legwork, and an unofficial - and unwritten - list of the most mentioned candidates for an opening on the court has been much discussed for several years.

It includes two judges from the 4th U.S. Circuit Court of Appeals, which hears cases from Maryland - J. Harvie Wilkinson III and J. Michael Luttig, who has sterling political credentials and has long been a darling of conservative legal circles. Luttig delivered one of the eulogies at the funeral of former Chief Justice Warren Burger in 1995, along with Rehnquist and Justice Sandra Day O'Connor.

The list includes former University of Chicago law professor Michael W. McConnell, now a judge on the Denver-based 10th U.S. Circuit Court of Appeals, and Emilio M. Garza, a judge on the New Orleans-based 5th U.S. Circuit Court of Appeals, who would offer an opportunity for Bush to appoint the first Hispanic judge to the Supreme Court. Attorney General Alberto R. Gonzales also has been a steady Supreme Court contender.

'Confirmability' factor

In recent weeks, Kmiec said, contenders Samuel A. Alito Jr., a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia who is nicknamed "Scalito" because of his similar philosophy to Justice Scalia, and John Roberts Jr., named less than two years ago to the D.C. Circuit Court of Appeals, have gained strength as candidates. That is in large part because they are seen as having the intellectual capability and temperament to serve on the court without having lengthy records of academic writing or judicial histories that could supply ammunition for critics.

"Both Roberts and Alito are very circumspect; they are very quiet personalities," Kmiec said. "Justice Alito has the reputation of coming in, saying, 'Good morning,' going and doing his work and saying 'Good evening' at the end of the day."

Maryland's Parry-Giles said the elusive "confirmability" factor increasingly will be a driving force in the choice. Liberal advocacy groups have prepared lengthy background reports on all of the frequently mentioned candidates and plan to move swiftly to try to frame the debate once a nominee is named.

"I think that motive is more important now than it was maybe three or four months ago, because of declining poll numbers, a Social Security plan that's stalled," Parry-Giles said. "I just think Bush is also a pretty savvy politician. ...

"This is such a big deal, and a botched Supreme Court nomination can just ruin - well, easily ruin at least the rest of this year."

Possible candidates for Supreme Court

If, as expected, Chief Justice William H. Rehnquist retires at the end of the Supreme Court term this month, these are the individuals mentioned most frequently as possible nominees to the high court:

Samuel A. Alito Jr.

Age: 55

Current job: Judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia; nominated by President George Bush in 1990

Birthplace: Trenton, N.J.

Education: Yale Law School, J.D., 1975; Princeton University, B.A., 1972

Emilio M. Garza

Age: 58

Current job: Judge on the 5th U.S. Circuit Court of Appeals in New Orleans; nominated by President Ronald Reagan in 1988

Birthplace: San Antonio

Education: University of Texas, J.D., 1976; University of Notre Dame, M.A., 1970; University of Notre Dame, B.A., 1969J.

Michael Luttig

Age: 50

Current job: Judge on the 4th U.S. Circuit Court of Appeals in Richmond, Va.; nominated by President George Bush in 1991

Birthplace: Tyler, Texas

Education: University of Virginia School of Law, J.D., 1981; Washington and Lee University, B.A., 1976

Michael W. McConnell

Age: 50

Current job: Judge on the 10th U.S. Circuit Court of Appeals in Denver; nominated by President Bush in 2001

Birthplace: Louisville, Ky.

Education: University of Chicago Law School, J.D., 1979; Michigan State University, B.A., 1976

John Roberts Jr.

Age: 50

Current job: Judge on the District of Columbia Circuit Court of Appeals; nominated by President Bush in 2003

Birthplace: Buffalo, N.Y.

Education: Harvard Law School, J.D., 1979; Harvard University, B.A., 1976

J. Harvie Wilkinson III

Age: 61

Current job: Judge on the 4th U.S. Circuit Court of Appeals in Richmond, Va.; nominated by President Ronald Reagan in 1984

Birthplace: New York

Education: University of Virginia Law School, J.D., 1972; Yale University, B.A., 1967

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