Court vacancy fights: One down, one more to go
Roberts confirmed; Bush to name nominee for O'Connor's seat
By Bill Mears
John Roberts was confirmed as chief justice of the Supreme Court by a 78-22 Senate vote on Thursday.
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WASHINGTON (CNN) -- A summer drama over the makeup of the Supreme Court received an extended run into autumn, as the political fight over a second vacancy on the bench threatens to erupt into a bitter partisan spat.
First things first for senators, who voted Thursday to confirm conservative federal judge John Roberts as chief justice of the United States. His confirmation was widely expected. The vote was 78-22.
All 55 Republicans, 22 Democrats and one independent supported Roberts.
The 50-year-old Roberts will replace his mentor William Rehnquist, who died September 3, after a months-long struggle with thyroid cancer.
But lawmakers, lobbyists and issues advocates have been looking past the confirmation vote, awaiting President Bush's choice to replace the retiring Justice Sandra Day O'Connor. A decision could be announced shortly after Roberts is approved.
"If President Bush were to name someone hard to the right then I think you would see Democrats really putting up a fight," said Edward Lazarus, a Supreme Court legal analyst. "In that sense, the Roberts confirmation may just be setting the stage for the next one."
Stakes are high
The stakes are high because a more conservative nominee could replace O'Connor, viewed as a moderate conservative and key swing vote on the nine-member court.
Democrats, and even some Republicans, have been pressing the president to name a similarly moderate justice, thus preserving the delicate 5-4 conservative majority that has resulted in many unpredictable rulings on hot-button issues in recent years.
"Part of Bush's thinking has to be his low approval ratings, the lowest in his presidency," said George Watson, a political science professor at Arizona State University, who has been following the confirmation process. "Liberal advocacy groups could exploit his handling in Iraq and the hurricane response by attacking a conservative Supreme Court choice as insensitive, a disregard for the people -- a divider not a uniter."
Given the charged atmosphere, some lawmakers have urged Bush to wait weeks or even months before naming a replacement.
Sen. Arlen Specter, Judiciary Committee chairman, said he had recently spoken with O'Connor, who promised to stay on until next June if necessary. "It would be quite a sacrifice for her, but she's prepared to do it if she is asked," Specter said. "By next June we'll know a lot more about Judge Roberts... than we do today."
If the White House were to name a replacement quickly, GOP Senate leaders have promised the nominee could be confirmed by Thanksgiving.
But the question most people want to know is not when, but who.
The list of contenders is long and varied. Court sources familiar with the White House strategy say the president may have had a nominee in mind, based on interviews he conducted with candidates in July for the seat that eventually went to Roberts.
But those sources say pressure was increasing within his own party to expand that list to include a more socially and politically diverse group of possible nominees.
Groups of potential nominees
The categories fall into roughly three groups:
Women: O'Connor has repeated several times her desire for a woman to replace her. That sentiment has been echoed by her fellow bench mate Ruth Bader Ginsburg and also first lady Laura Bush.
Top conservative female jurists include federal appeals judges Edith Jones, Edith Clement and Karen Williams. All three work in Southern-based circuits. Court sources say Jones and Clement were early front-runners, but Williams and Justice Maura Corrigan, of the Michigan Supreme Court, have seen their political stock rise in recent days.
Latinos: The opportunity to make history by naming the first Latino to the high court has long been a privately held goal of Bush, sources close to the selection process told CNN.
Latino legal and political groups have pushed hard to make that happen. Leading contenders include the president's friend and ally Attorney General Alberto Gonzales and federal appeals judges Emilio Garza, Edward Prado and Consuelo Callahan. Corrigan is also Latino, according to the Hispanic National Bar Association, and could give Bush a political "two-fer."
White men: Bush surprised many when he named Roberts, ignoring pleas for diversity. When confirmed, Roberts will be among six white men on that bench, a historically exclusive group in that sense.
Only two women and two African-Americans have sat on the court: O'Connor, Ginsburg, Thurgood Marshall and Clarence Thomas. Court sources say Bush had interviewed two other white men for the job that went to Roberts: federal appeals judges J. Harvie Wilkinson and Michael Luttig, both conservatives of the Richmond-based 4th Circuit. Other federal judges include Samuel Alito, based in Philadelphia.
"It's always a tricky guessing game trying to figure out what the politics are behind a Supreme Court appointment," said Lazarus. "But it would seem unlikely that President Bush is going to put another white male to replace O'Connor. It seems much more likely he would want to make a historic statement by naming the court's first Hispanic or name a woman. From a political perspective, that would probably play a little bit better."
Some conservatives say the president should ignore politics and simply pick the person who he has said he wants in a judge: a strong conservative who would strictly interpret the Constitution.
Sources familiar with the selection process say Bush relied, in large part, "on his gut," when choosing Roberts. He was, one source said, "a person the president developed a personal and professional rapport with, someone who he felt very comfortable with in the end. Judicial philosophy, legal background, all that was important, but he also really liked him (Roberts) as a person, liked his story."
Bush may prove unpredictable
Political analysts say Bush may prove unpredictable in his decision-making. "It could depend on how much of a political stomach he has," said Watson. "They may be all ready with the conservative candidate they want, and see where things fall. But he has to watch out. That nominee may prompt the Democrats to pull out the filibuster threat, where he (the nominee) would not get a Senate vote, or would be rejected in the end. It's an interesting strategy."
The partisan fights over judicial nominees has preoccupied many congressional lawmakers, and only intensified since Bush took office in 2001.
Outside the Beltway, the public remains interested, said political analyst Watson. He runs a Web site (www.supremecourt.ws) that gauges public reaction to the confirmation process, and has been surprised at how Americans are viewing the process.
"My custodian came into my office the other day to talk about the nomination, who Bush would pick," said Watson. "He said the other custodians were talking among themselves about the choices. I sense people care a great deal, but they would prefer not to have a huge battle over this, the kind we had with Robert Bork (in 1987) and Clarence Thomas (in 1991). Most seem willing to give Bush the benefit of the doubt over who he wants."
But the political stakes have only increased in the age of Web blogs, 24-hour news channels and aggressive issue-advocacy groups. Whether it comes to pass or not, most lawmakers anticipate a fight over Bush's next choice for the nation's highest court.
"It's been 11 years now since the country has focused its attention on the question of who is on our Supreme Court and what is their proper role," said legal analyst Lazarus. "Right now we are having two opportunities in two confirmation hearings to focus on a very important question, the basics of what is the United States, as a democratic experiment."
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