The Next Nomination

Now that the Senate is poised to act on the nomination of John Roberts as Chief Justice of the United States, it’s time to examine President Bush’s range of options for his next appointment — the one that really counts, since this person will replace Justice Sandra Day O’Connor, the swing vote on the court.

His options really fall into three general categories (though it’s always possible he could do something unexpected). These categories are as follows: (1) an Hispanic (2) a woman or (3) a sitting member of the United States Senate.

Let’s start with the Hispanic category. The Republican Party’s recent outreach to African Americans suffered a significant setback with the botched response to hurricane Katrina. Many black leaders seem convinced that the Bush administration would have responded more quickly had the victims in New Orleans been primarily white. Thus, the Republican Party’s outreach to the Hispanic community becomes ever more important.

Bush clearly has affection for his attorney general, Alberto Gonzales (search), but many religious conservatives oppose Gonzales because they fear he may not be a reliable vote on issues such as abortion. There are some sitting Hispanic federal judges whom Bush could consider, but don’t be surprised if Bush doesn’t bow his neck and name Gonzales anyway— if he decides to appoint an Hispanic.

The next category is women. There are a number of conservative women on the federal bench and Bush may well pick one of them. Depending on whom he names, this could result in a monumental confirmation battle, because some of the potential nominees clearly would not be in the mold of Justice O’Connor.

A dark horse would be Bush’s White House Counsel, Harriett Miers, a highly regarded Texas attorney who clerked for a Republican federal district judge in Dallas 35 years ago. She doesn’t have quite the paper trail that some of the sitting judges have.

That brings us to the category of sitting United States senators. Several names come to mind: Sen. John Cornyn (search) of Texas and Sen. Lindsey Graham (search) of South Carolina. Both are relatively young and could be expected to serve for many years if confirmed — a clear criterion for this White House.

Sitting senators generally receive some deference from their colleagues and might not face a tough confirmation fight. However, Graham has been somewhat independent of the White House from time to time (though he is a reliable conservative on social issues) and Cornyn made a significant misstep earlier this year in his comments suggesting that the rulings of judges could perhaps incite violence against them.

I haven’t tried to list every name that has appeared in print in these three categories, and certainly there are a number of other Hispanics, women and even current U.S. senators who may be under consideration by the White House.

But this is a starting point.

Also, there is an interesting aspect to all of this that has not received full attention. It is certainly possible that this nominee may not truly be the swing vote as often as O’Connor was.

Judge Roberts did not appear in his testimony before the Senate to be quite as reliably a hard-line conservative vote as the man he will replace, the late Chief Justice William Rehnquist (search). If this turns out to be the case, even a hard-line appointee to O’Connor’s seat may not alter the balance on the court as dramatically as some fear.

Judge Roberts was an indirect beneficiary of Hurricane Katrina (search). All the media coverage of the hurricane diverted public attention from his nomination hearings. Also, any television advertising on his appointment (either pro or con) seemed to get lost in the Katrina coverage.

Barring another natural disaster, the fight over the next nominee should be front and center in the media. I, for one, think the White House acted very wisely in nominating someone of Judge Roberts' quality, even if I don’t agree with him on all issues. Let’s hope their next pick is equally qualified.

Martin Frost served in Congress from 1979 to 2005, representing a diverse district in the Dallas-Ft. Worth area. He served two terms as chairman of the House Democratic Caucus, the third-ranking leadership position for House Democrats, and two terms as chairman of the Democratic Congressional Campaign Committee. Frost serves as a regular contributor to FOX News Channel, and is currently a fellow at the Institute of Politics at the Kennedy School of Government at Harvard University. He holds a Bachelor of Journalism degree from the University of Missouri and a law degree from the Georgetown Law Center.

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