WASHINGTON – Maybe President Bush was just joking around to fuel speculation, but conservatives aren't laughing about the president's playful glance at Attorney General Alberto Gonzales (search) when he described the list of possible nominees for the second Supreme Court vacancy as wide open.
"No conservative leader supports Al Gonzales and those who say they do are not telling the truth but are afraid of losing White House access, or promised help with fundraising," said Manuel Miranda, former counsel to Senate Majority Leader Bill Frist.
Senior White House officials do not expect the president to make his choice known this week, and possibly not until after the Senate holds a confirmation hearing that begins Monday for John Roberts, Bush's nominee for chief justice.
Bush has said only that he will nominate a replacement for retiring Justice Sandra Day O'Connor (search) in a "timely manner."
"I really don't know whether it's two weeks or four weeks," Frist said Wednesday.
If Bush wants to wait until after the Roberts hearings are over, that gives him until at least Sept. 20 to make up his mind, if he hasn't already done so. That's the earliest date that Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee, says he will call for a committee vote on whether to confirm Roberts.
Burdened with low poll ratings and stung by criticism that the government responded slowly to Hurricane Katrina, Bush might not have the political standing to try to steer the court hard right with his replacement for O'Connor.
Critics have alleged that a memo Gonzales wrote on the treatment of terrorism detainees helped lead to abuses like those seen at the Abu Ghraib prison in Iraq. Gonzales might, however, be more palatable to liberals than known hard-line conservative jurists like Edith Hollan Jones (search), Priscilla Owen (search), Emilio Garza (search) and Michael Luttig (search) — all thought to be among those under consideration.
Bush could be waiting to see how Roberts fares in his confirmation hearing, which begins Monday on Capitol Hill. If the resistance to Roberts is tempered, or his political standing rises over the next few weeks, the president might feel emboldened to nominate a hard line judicial conservative.
"The president is at a Rubicon here — a major crossing point," said Sen. Charles Schumer, D-N.Y., a member of the Judiciary Committee.
If confirmed, Roberts is expected to vote much like the late Chief Justice William H. Rehnquist he would replace. So if Roberts-for-Rehnquist is a wash and Bush wants to make the court more conservative, he would have to nominate someone to the right of O'Connor. O'Connor is a judicial conservative but sometimes sided with the liberal bloc of the court, something that earned her the tag of swing voter.
"That's the dilemma Bush faces," Schumer said.
"Because Roberts is in the mold of Rehnquist, what most Americans would say is for the associate justice pick, [Bush should choose] someone a little more moderate — in the mold of O'Connor," he said. "At first blush, Gonzales might well fit that, but obviously you'd want to so some research."
Choosing Gonzales also would allow Bush to fulfill his expressed desire to nominate the first Hispanic to the court.
Gonzales is on the list of eight candidates that the Hispanic National Bar Association suggested to the White House in July. On Tuesday, the bar delivered a second letter to the White House suggesting the same eight plus 60 other prospective Hispanic candidates, including Maura Corrigan, a judge on the Michigan Supreme Court, whom it hopes Bush will consider to replace O'Connor.
Many conservatives, however, wouldn't be happy with Gonzales.
"Conservative leaders are again worried that the president's delay [in making his second nomination to the court] is intended to give the White House time to build support for Alberto Gonzales and to distance the selection from Katrina," Miranda said.
Liberal groups such People for the American Way are wary of Gonzales, too.
"We opposed Alberto Gonzales when he was nominated to be attorney general," said Ralph Neas, president of the organization. "We believe that his tenure — both as counsel to President Bush and [former] Gov. Bush — demonstrated a cavalier attitude towards the rule of law. We continue to have serious concerns regarding a Gonzales nomination."