President Bush's pick for chief justice of the United States was confirmed and sworn in as expected on Thursday, but Bush's next nominee to be a Supreme Court (search) justice is unlikely to get as smooth a ride.
Beneath the bluster over John G. Roberts' (search) positions on abortion and civil rights, Democrats found very little to squabble about, owing largely to Roberts' pristine resumé, breadth of legal precedent and scant divulgence of personal views.
Most if not all of the 22 Democrats who voted against Roberts' confirmation on Thursday had no quarrel with the judge's qualifications. They said they opposed him because they couldn't get a clear read on his views of the social issues likely to come before the high court.
That surely will matter to more Democrats in Round 2 of Bush's quest to rebuild the Supreme Court.
"This is the time for a consensus nominee. I know that there will be people who will pressure the president from one side to have a nominee who is way over to that side, but I don't think that serves the president or America well," said Sen. Charles Schumer, D-N.Y., who opposed Roberts' confirmation.
"I think you can put up John Roberts' ideological twin and you'd get a filibuster at this point. Their base is demanding it," said Sen. Sam Brownback, R-Kan., about Senate Democrats. "I think unless the person has written extensively about Roe [in a positive way], you're going to get a filibuster. And that's unlikely. I just think a filibuster is going to happen."
Americans on both sides of the aisle believe some form of abortion should be legal, but Roe v. Wade (search), the highly controversial 1973 ruling that legalized abortion, has in many ways come to define much of the split between Republicans and Democrats over judicial nominees.
It would not be entirely surprising if Roberts shared the views of William H. Rehnquist (search), the late chief justice and Roberts' mentor, on Roe. Rehnquist often sided with conservative Justices Antonin Scalia (search) and Clarence Thomas (search) on limiting availability of abortions, and unless Roberts differs much from Rehnquist, the court has hardly shifted with him on board.
But replacing Sandra Day O'Connor (search), who not only made history by being the first woman on the court but often cast the deciding vote in high-impact decisions, will be a far different ordeal.
"This replacement is extremely important because it's my view that John Roberts was a one-for-one replacement for the chief," said Marci Hamilton, a former O'Connor clerk and professor at the Benjamin N. Cardozo School of Law. "Justice O'Connor held the middle in the court, and on many social issues, like separation of church and state, she was the crucial vote there."
Bush is also under pressure to maintain the diversity of the court and name a woman or a minority, more specifically a Hispanic, to replace O'Connor. Even First Lady Laura Bush has stressed on several occasions how much she would like her husband to name a woman to replace O'Connor.
To ensure a swift confirmation process similar to the one Roberts enjoyed, the candidate would also have to have an inarguably impressive resumé, inoffensive personality and sympathy for Democratic opinions.
In recent days, Bush has hinted that he may choose a nominee who is a minority or a woman, and his spokesman echoed that thought Thursday.
"He is mindful that we are a country that is diverse and we are proud of our diversity, and that diversity is one of our greatest strengths," White House Press Secretary Scott McClellan said.
White House officials have said Bush would announce his pick any day now — the Supreme Court opens its next term on Monday — and on Thursday morning readers of the nation's leading newspapers could be forgiven for believing White House Counsel Harriet Miers (search) was a lock.
Not so fast, say many court watchers.
"The caution should be Judge Edith Brown Clement's name was floated quite prominently" when Bush first picked Roberts to replace O'Connor in July, warned David Yalof, a political science professor at the University of Connecticut and author of "Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees."
University of Virginia's Center for Politics chief Larry Sabato added that Miers is 60 years old, not an age that would keep her on the bench for a generation, which Bush is likely shooting for with his next nominee.
On July 19, the day Bush was expected to announce his choice to replace O'Connor, the Washington press corps had all but declared Clement, a 5th Circuit Court of Appeals judge, the pick. The evening announcement that it was not her but Roberts — then little known outside of Beltway circles — caught the media and Democrats off-guard.
Some political observers say they believe that Clement's name was deliberately floated by the White House.
"Circulating names on a short list creates a pre-vetting process, so they can at least know what to expect," Yalof said.
The prospect of Clement being promoted to the Supreme Court did not sit well with conservatives, who ache for a candidate with on-the-record views. Court watchers say it is unlikely Clement is a front-runner this time around, at the very least to spare her a double dose of embarrassment.
It is difficult to pinpoint a female John Roberts on the White House's short list, which may include such staunch and sometimes colorful conservative judges as Michigan Supreme Court Justice Maura Corrigan, 5th Circuit Court judges Priscilla Owen and Edith Jones and D.C. Circuit Court judge Janice Rogers Brown. Also mentioned have been Consuelo Callahan, a Hispanic on the 9th Circuit Court of Appeals, and Karen Williams from the 4th Circuit Appeals Court.
"I haven’t seen a name yet that's going to keep [Bush] out of trouble in the Senate," Hamilton said. "Miers seems like a diversion."
Andrew McBride, another former O'Connor clerk and now a partner at Washington's Wiley Rein and Fielding, said he would be "shocked" if Bush did not nominate a woman.
The downside: "Is there someone else like [Roberts] out there who is a woman or minority? I don't think so," he said.
While all the women on the short list are more conservative than moderate, potential nominee Attorney General Alberto Gonzales could give Bush both a conservative justice he trusts as well as force Democrats to decide how badly they want to oppose the first Hispanic nominee to the Supreme Court.
But Democrats are probably not Bush's only concern. By backing too conservative a nominee, the president risks losing the support of moderate Republicans like Senate Judiciary Chairman Arlen Specter.
"As with many decisions, the decision about confirming the next nominee will be up to the center of the Senate," said Susan Herman, a Supreme Court scholar at Brooklyn Law School. "What Bush has to be keeping an eye on is not just the right wing of his party, but the 'big tent' of the Republican Party."
In the end, Bush may end up offering a white male nominee, leaving opponents to attempt to crush the candidate based on everything from his judicial merits to his political affiliations and anything else he may have ever said or written.