AT LAW



AT LAW

And the Nominees Are . . .

Here's a short list of who might be on deck for the Supreme Court.

BY MELANIE KIRKPATRICK

Monday, November 15, 2004 12:01 a.m.

The Supreme Court is shaping up as the first defining issue of a second Bush term--and that's before there's a nominee or even an opening. Consider the gauntlet thrown down last week by Senate Majority Leader Bill Frist at the Federalist Society's annual conference.

Speaking of Democrats' unprecedented filibuster of 10 appeals-court nominees, Sen. Frist announced his intention to go "nuclear" if they try the same tactic again. Under the "nuclear option," Senate rules would be reinterpreted so that 51 votes, not a supermajority of 60, would be needed to end debate on judicial nominees and move to an up-or-down vote on the floor. The Constitution requires a majority of senators to confirm a president's selection and all of the nominees filibustered in Mr. Bush's first term would have been confirmed by bipartisan majorities if the Senate had been permitted to hold a vote.

Mr. Frist has threatened to go nuclear before--but this time there's reason to believe he means it. Reinterpreting the filibuster rules would require a simple majority vote, and in a Senate with a Republican majority of 55 that should be doable--even with the anti-nuclear Sens. Lincoln Chaffee, Susan Collins and Olympia Snowe voting no. Sen. Arlen Specter, who's slated to be chairman of the Judiciary Committee, is on board too.

Mr. Frist's tough talk got a warm reception from Federalist Society conservatives. But chances are he'll never have to walk the walk. When it comes time to consider a filibuster--especially for a high-profile Supreme Court nomination--red-state Democrats are likely to recall the fate of their colleague Tom Daschle and demur. The senator from South Dakota lost his seat this month in part over his obstruction of the president's judicial nominations.

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Meanwhile, the question of the hour is, what kind of justice would Mr. Bush appoint to the Supreme Court? With Chief Justice William Rehnquist seriously ill, the betting is that Mr. Bush will get to make his first appointment before too many more gavels sound on First Street.

As of last week, the man believed to be the leading contender was taken off Court-watchers' lists (at least for now). The president instead nominated Alberto Gonzales as his next attorney general. Also absent is Federalist Society stalwart Ted Olson. Age discrimination may be against the law when the rest of us try to hire someone, but one of the unwritten requirements for the job of justice is that the candidate be young enough to serve at least 20 years. Even Mr. Olson's admirers call him "too old and too controversial." The former solicitor general is 64.

Eight names--noted nearby--turn up often in speculation. Interest groups have had four years to compile, scrutinize and spin every word ever uttered or put on paper by each of the presumed candidates. If nominated, all would be attacked from the left for the usual Roe reasons--and some would face criticism from the right as well. Both sides are raring to go.

|The Short List 10 |

|Possible Bush nominees for the Supreme Court |

|Samuel Alito Jr., 54 |

|Third Circuit |

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|Janice Rogers Brown, 55 |

|Calif. Supreme Court |

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|Miguel Estrada, 43 |

|Washington Attorney |

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|Emilio Garza, 57 |

|Fifth Circuit |

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|Edith Jones, 55 |

|Fifth Circuit |

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|J. Michael Luttig, 50 |

|Fourth Circuit |

| |

|John Roberts, 49 |

|D.C. Circuit |

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|J. Harvie Wilkinson, 60 |

|Fourth Circuit |

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| |

| |

Two men mentioned for chief justice are J. Harvie Wilkinson and John Roberts. Both have the intellectual firepower, writing skills and temperament for the job; both are well-respected in liberal legal circles. "They are to the right what Justice (Stephen) Breyer and Justice (Ruth Bader) Ginsburg are to the left," says a source close to the White House. Judge Roberts was confirmed unanimously to the appeals bench last year.

Judge Wilkinson could have a harder time. He would face criticism from the left for his affirmative-action opinions and from the right from pro-lifers who cite passages in a 1976 law review article and a 1998 opinion to suggest he might be squishy on Roe. He also carries a potentially damaging "most conservative" label, thanks to an analysis of likely nominees by Judicature magazine.

As for associate justice, the remaining six on the list could expect varying degrees of confirmation angst. Emilio Garza has called Roe "judicial legislation" and said it should be overturned, even while faithfully applying it to the cases that have come before him. J. Michael Luttig and Janice Rogers Brown carry reputations of being difficult to work with. Sam Alito's biggest liability is his nickname, "Scalito," tying him to liberal bogeyman Justice Antonin Scalia. Liberals would have a field day with Edith Jones, whose record includes a range of hard-core decisions on social issues.

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A conservative dream team is Justice Scalia or Clarence Thomas to replace Chief Justice Rehnquist with Miguel Estrada filling the associate's opening. Justice Thomas has been undergoing a liberal rehabilitation of sorts recently and might face an easier confirmation fight than Mr. Scalia.

He was the subject of a favorable series in the Washington Post in September, and last month an article by David Garrow in the New Republic offered a positive appraisal of his record on the Court. Most notably, it took aim at the idea that Justice Thomas is a lackey of Justice Scalia. "During the court's 2003-2004 term," Mr. Garrow wrote, "Scalia and Thomas voted together in only 73% of cases, and six other pairs of justice agreed with each other more often than Scalia and Thomas."

Mr. Estrada is sometimes called the smartest lawyer of his generation. He spent more than two years in filibuster limbo before withdrawing his name from consideration for the D.C. Circuit Court of Appeals. Democrats' complaint that the White House wouldn't let them see Mr. Estrada's private legal memorandums from his days at the Justice Department could be addressed by allowing senators private access.

In the election that just ended, Mr. Bush often spoke of the kind of justice he would nominate. Chances are he'll soon have the opportunity to show what he meant. Whoever that is deserves a fast up-or-down vote in the Senate.

Ms. Kirkpatrick is associate editor of the Journal's editorial page.

Copyright © 2005 Dow Jones & Company, Inc. All Rights Reserved.

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