WASHINGTON – President Bush's supporters want him to replace retiring Justice Sandra Day O'Connor (search) with a rock-solid conservative jurist, but Bush's low poll numbers have given liberals hope he'll nominate a moderate to avoid a raucous fight in the Senate.
"The real question is, 'What is he trying to accomplish here? How much does the president want to radically shift the court right rather than try to get positive things done in the rest of his presidency?'" said Elliot Mincberg, counsel with the liberal People for the American Way.
Bush is weighing his second nomination to the Supreme Court at an inconvenient time, politically. Daily bombings in Iraq, high gasoline prices at home and the government's slow response to Hurricane Katrina have pushed his job approval ratings down to around 40 percent, the lowest of his presidency.
The president's core supporters are urging bold action to sway the court to the right. Some think Bush might pick a hard-liner to keep his base happy and prevent a further drop in the polls.
Manuel Miranda, former counsel to Senate Majority Leader Bill Frist, R-Tenn., said Bush has plenty of political capital to have a strong judicial conservative, especially after his address to the nation on Hurricane Katrina and the liberals' "embarrassing cry-wolf effort against the telegenic [John] Roberts," Bush's nominee to replace the late Chief Justice William H. Rehnquist (search).
Bush is not expected to announce his second nominee to the court until after the full Senate votes late this month on whether to confirm Roberts.
The White House won't discuss the selection process, but some legal experts who talk to Bush administration officials regularly say the president is interviewing new prospects. On Wednesday, Bush meets with top senators from both parties about who should be picked for the lifetime appointment.
And it's this nomination to replace O'Connor that gives Bush the opportunity to rein the court to the right.
Many legal analysts say Roberts-for-Rehnquist amounts to replacing one conservative vote on the court with another. O'Connor's vote, however, has been the deciding, swing vote in some affirmative action, abortion, campaign finance, discrimination and death penalty cases.
Liberal groups are working to make Roberts' expected confirmation a close vote so Bush will not perceive that he has the option of trying to shift the court dramatically to the right with his next nomination. A strong "no" vote would tell Bush that he shouldn't nominate an ideologically rigid conservative as O'Connor's replacement, said Nan Aron of the liberal Alliance for Justice.
It's possible that Senate Democrats wouldn't have enough votes to filibuster anyone that Bush might choose. On the other hand, if Democrats cooperate and make a strong vote for Roberts' confirmation, it's possible that Bush would temper his next choice.
Regardless of his choice, the wrenching recovery from the hurricane that hit the Gulf Coast will serve as the backdrop for Bush's next Supreme Court nomination.
Ironically, a lot of speculation about who will be named is focused on New Orleans, the seat of the 5th Circuit U.S. Court of Appeals. Five judges on that bench — Priscilla Richman Owen (search), Edith Brown Clement (search), Edith Hollan Jones (search), Emilio Garza (search) and Edward Charles Prado (search) — have been floated as possible Bush picks.
Mentioned most frequently in recent weeks is Owen, a former Texas Supreme Court justice who is well known to the Bush family but has been a federal appellate judge only since June. Owen was the subject of a filibuster for the appeals court seat, yet she was confirmed, along with four other controversial judges, under a compromise filibuster agreement crafted by seven Democrats and seven Republicans in the Senate.
Clement, a solid conservative, was interviewed by Bush a few months ago before he chose Roberts and it's unclear whether she is still in serious contention.
Other women mentioned as possible candidates include Maura Corrigan, a member of the Michigan Supreme Court, and conservative federal appellate judges Alice Batchelder, Karen Williams and Janice Rogers Brown (search).
Naming the first Hispanic to the court would make history and boost GOP efforts to woo the fast-growing voting bloc.
Garza and Prado, both native Texans, are Hispanic. So is Miguel Estrada (search), a conservative young lawyer whose nomination to the U.S. Court of Appeals for the District of Columbia Circuit was thwarted by Senate Democrats. They argued that he didn't have judicial experience and failed to make clear his views on abortion.
The most oft-mentioned Hispanic in contention is Attorney General Alberto Gonzales (search). Bush is being urged not to nominate his loyal friend by his base supporters, who oppose him partly over questions about his stances on affirmative action and abortion.
Another candidate is Larry Thompson (search), the federal government's highest ranking black law enforcement official when he was deputy attorney general during Bush's first term. Thompson currently is counsel at PepsiCo. Other possible nominees are federal appellate judges like J. Michael Luttig, J. Harvie Wilkinson, Michael McConnell or Samuel Alito.