Published January 13, 2015
President Bush said Friday he will pick a Supreme Court (search) nominee to replace Justice Sandra Day O'Connor in a "timely manner," and it will be someone who meets a "high standard of legal ability, judgment and integrity and who will faithfully interpret the Constitution and laws of our country."
But no matter whom Bush picks -- given the partisan air that has characterized Capitol Hill with the nomination of John Bolton (search) to be the U.S. ambassador to the United Nations and several other appellate judicial picks -- a fight is likely to ensue.
"The nation deserves and I will select a Supreme Court justice that Americans can be proud of," Bush said in brief remarks in the White House Rose Garden Friday in announcing O'Connor's retirement. "I take this responsibility seriously. I will be deliberate and thorough in this process."
America needs a "dignified process of confirmation in the United States Senate characterized by fair treatment, a fair hearing and a fair vote," Bush said.
Possible replacements include Attorney General Alberto R. Gonzales and federal courts of appeals judges Samuel A. Alito Jr., Michael McConnell, Emilio Garza and James Harvie Wilkinson III. Others mentioned are former Solicitor General Theodore Olson, lawyer Miguel Estrada and former deputy attorney general Larry Thompson.
Another prospective candidate is Edith Hollan Jones, a judge on the 5th U.S. Circuit Court of Appeals who was also considered for a Supreme Court vacancy by the first President Bush.
The White House said there will be announcement until at least after Bush returns from the G8 meeting in Scotland next Friday. Bush said he would consult with the Senate on any potential names.
Spokesman Scott McClellan said the White House would consult with Majority Leader Bill Frist and Minority Leader Harry Reid as well as leaders of the Judiciary Committee, and he expressed hope that Democrats would not block a vote on the president's pick.
"I can't imagine that the Democrats would want to engage in controversial tactics when it comes to a nominee for the Supreme Court," McClellan said.
"We know what to do and we would of course be interested in input from the White House, but it's a judgment that the Senate will have to make because it's our responsibility on confirmation," Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said Friday. Specter's committee is responsible for ushering through judicial nominees to the full Senate.
Heading for a Senate Showdown?
Not long ago, Democrats assailed Bush for his pick of appellate court judges like Patricia Owen (search) and Janice Rogers Brown (search), saying their ultra-conservative views were out of the mainstream. As they filibustered some of the judicial nominees, they argued that Bush needs to do more to get Congress' input on such important nominations.
That fight turned nasty when Senate Majority Leader Bill Frist, R-Tenn., threatened to use the so-called "nuclear option (search)" to end the judicial filibuster and force an up-or-down vote on the nominees. Ultimately, a group of centrist lawmakers from both sides of the aisle brokered a deal that would usher some nominees through but still leave the filibuster door open for others.
That agreement may be tested soon, if Democrats object to Bush's pick to replace O'Connor.
"The pool of persons that I'm aware of that the president might pick from are all well within the parameters of the so-called agreement and are not hostile to individual rights," said C. Boyden Gray, a FOX News analyst and counsel to former President George H.W. Bush.
"This is so important," said Sen. Jeff Sessions, R-Ala., who noted that outside groups have attacked many nominees and taken "things in their past and distorted it completely out of proportion ... it has been an unfair, undignified, dishonest, really. A number of our senators, I think, have been caught up in that."
He added: "I just hope our Democratic colleagues here will not take those attack groups at face value ... they should not just be regurgitating up those charges, most of which are false."
Democrats said O'Connor's retirement provides a prime opportunity for the president to give the Senate a real chance to exercise advice and consent.
"The decisions handed down by the Supreme Court profoundly affect the daily lives of all Americans," Senate Democratic Leader Harry Reid of Nevada said in a statement. "The Court is the final guardian of our constitutional rights and liberties. That is why the process of filling a Supreme Court vacancy is so important.
"At this critical moment, the president must recognize the Senate's constitutional role. He should give life to the advice and consent clause by engaging in meaningful consultation with senators of both political parties."
Democratic Senators Ted Kennedy of Massachusetts and Christopher Dodd of Connecticut, in a press conference, pointed to O'Connor's retirement as an opportunity for Bush to choose consensus rather than confrontation.
The abortion battle is a key issue for the court. Pro-choice supporters are fearful Bush will choose a conservative justice who could lead to the overturning of Roe v. Wade, while many conservatives would like to see such a justice put in place. Gay marriage has been another controversial issue that could eventually make its way to the Supreme Court.
Some Republicans have been critical of judges like those involved in gay-marriage rulings and the Terri Schiavo (search) case, claiming those justices have interpreted the law more according to their own public policy opinions rather than the letter of the law.
Bush's pick for O'Connor's seat will be scrutinized by Republicans "to make sure they have a commitment to follow the rule of law fairly .. they need to have a record at this point in history, for sure, of being a justice that would follow the law and not allow their personal views to influence how they interpret words," Sessions told FOX News.
The Crucial Swing Vote
O'Connor's seat has been perhaps the most crucial one on the Supreme Court. Seen as a swing voter among the nine justices, she has built a reputation as a hard-working moderate conservative who emerged as a crucial power broker.
O'Connor often lined up with the court's conservative bloc, as she did in 2000 when the court voted to stop Florida presidential ballot recounts sought by then-Vice President Al Gore, effectively calling the election for Bush. As a "swing voter," however, O'Connor sometimes votes with more liberal colleagues, although Gray noted that O'Connor's resignation, so far as the way she votes, is not nearly as catastrophic as it would be if someone else had retired.
"She's a symbol of someone who's an unreliable conservative," said Jonathan Turley, a law professor at George Washington University. "The court has often been split 5-4; that vote more often than not has been O'Connor's."
The White House has refused to comment on any possible nominees, or whether Bush would name a woman to succeed O'Connor. Her departure leaves Justice Ruth Bader Ginsburg (search) as the only woman among the current justices. But it's no secret Bush wants a conservative judge on the bench, an issue he campaigned on during the election.
"I have tremendous confidence, based on my own experience in the White House with President Clinton, that you can nominate a justice that has such high integrity, distinguished reputation and background that you could in fact avoid the kind of conflict we've seen in recent years," said Leon Panetta, former Clinton chief of staff.
"The American people think we should have that nomination and hopefully that kind of process in the Senate of the United States.
"The last thing we need is another partisan battle going on in Washington. We need to have some unity, and this is an opportunity for the president to do that."
Turley said Gonzales, the attorney general, represents "something of a trifecta for the White House. He's young, which is important, he's a Texan and more importantly, he's a Hispanic."
But, he added, "Gonzales, unfortunately, is in this gray area between the right and left. Liberals don't trust him because he signed the so-called torture memo ... conservatives don't trust him because he's viewed as sort of unreliable because of decisions he made on the Texas Supreme Court."
Other options are appeals judges J. Michael Luttig and John Roberts.
"Judge Luddig is a favorite among many conservatives in this city," Turley said, noting that Luddig is young and smart but has been targeted by liberals as hostile to criminal rights. "He's likely to create quite a battle royale."
Roberts "would be excellent," Gray said.
"He's probably the most internally celebrated appellate lawyer of his generation ... most highly regarded by the court ... he too would make an absolutely fine addition."
Added Gray: "The president's got a great talent pool from which to choose and I'm really anticipating a great choice."