William Fisher

NEW YORK, Sep 27 2005 (IPS) — As Pres. George W. Bush prepares to nominate a successor to retiring U.S. Supreme Court Justice Sandra Day O’Conner – as early as this week – he may be facing one of the most bruising battles of his presidency.

That the president will nominate a conservative is a given in the equation. But Bush’s plummeting popularity and the November 2006 congressional election have introduced a new dimension to the process: the increasing willingness of Republican senators to publicly disagree with the leader of their own party.

For some senators, the question is not conservative or liberal – it is how conservative.

Another factor reportedly complicating Bush’s choice is his quest for more diversity on the high court. That means nomination of a woman or a minority, or someone who is both.

But the names of both women and minorities being bandied about in Washington are jurists with long service on lower courts and, therefore, extensive paper trails.

These paper trails will make it far more difficult for a nominee to duck questions on pivotal issues for both Democrats and Republicans. The issues include a woman’s right to choose abortion, congressional versus presidential power, federal versus state authority, and a host of civil liberties concerns.

These are the kinds of questions so deftly dodged for three days last week by Supreme Court Chief Justice nominee John Roberts, who nevertheless won the votes of four of the Democratic members of the Senate Judiciary Committee, which oversees court appointments.

Roberts, who is virtually assured of a positive vote by the full Senate on Thursday, was opposed by five of the nine Democrats on the committee – Sens. Dianne Feinstein of California, Joseph Biden of Delaware, Edward Kennedy of Massachusetts, Charles Schumer of New York and Dick Durbin of Illinois – but supported by the committee’s top Democrat, Sen. Patrick Leahy of Vermont, along with Sens. Herb Kohl and Russ Feingold, both of Wisconsin.

If the president’s next nominee to the lifetime appointment is any of those reportedly being considered by the president, he is likely to face a far more unified Democratic opposition.

The reason is that retiring Justice O’Connor was frequently the “swing” vote on the Court – the “five” in five-to-four decisions. To many Republicans in the political right wing, O’Connor was considered too liberal. To Democrats, she was hailed as a voice of moderation.

Some of the women most often mentioned are federal appeals court judges Janice Rogers Brown, an African-American, Consuelo Maria Callahan, a Latina, and Priscilla R. Owen. Judges Brown and Owen faced long delays in their confirmations, and were then confirmed only on the basis of a deal between 14 moderate Democrats and Republicans, determined to avoid a filibuster.

The men include two African Americans, Michigan Supreme Court Judge Robert P. Young Jr. and Larry D. Thompson, general counsel of PepsiCo Inc., who served as the top deputy to then-Attorney-General John D. Ashcroft, and a Latino, Attorney-General Alberto R. Gonzales.

Some of these prospective nominees are thought to be so far to the political right that they are likely to face opposition from a number of the more moderate voices in the Republican Party. These include pro-choice senators like Judiciary Committee Chairman Arlen Specter of Pennsylvania, Olympia Snowe and Susan Collins of Maine, and Lincoln Chafee of Rhode Island.

Senator Snowe, who supports abortion rights and has said she will vote to confirm Judge Roberts, also previously voted to confirm some of Bush’s most contentious appeals court nominees – including Owen and Brown – over the opposition of liberals.

But Snowe said she might not support either one for the Supreme Court. “This is certainly a different level of evaluation,” she said, “especially because of the balance of power on the court.”

At the other end of the spectrum is the president’s base – religious conservatives for whom “too conservative” is an oxymoron. This group is led by Judiciary Committee members Sam Brownback of Kansas and Tom Coburn of Oklahoma.

Brownback has said he would vote against any nominee who was not “solid and known” on cultural issues like abortion, same-sex marriage and religion in public life.

“If the president doesn’t nominate a solid (socially conservative) nominee, that is going counter to what he campaigned on,” Brownback said.

But the president also faces other considerations. For example, the Latino vote has become increasingly important to Republicans – but the Latino community is not homogeneous; it includes many left-of-centre groups as well as conservatives. Those on the right have expressed opposition to Attorney-General Gonzales, who is known to favour a woman’s right to have an abortion.

The African American community represents similar complexity for the president. The Bush administration has been conducting a relentless campaign to reach out to African Americans, especially religious leaders, whose views on social issues such as abortion and same-sex marriage place them squarely in the conservative camp. But here, too, there are many different views within the African American community.

Marcia Coyle, writing in the National Law Journal, points out that the pool of conservatives who are also either women or minorities is substantially smaller than that of conservative white males.

Still, she says, “37.3 percent of all federal judges are nontraditional appointments. Women hold nearly a quarter of all federal judgeships. Representation of Asian-Americans is at less than one percent; no Native Americans sit on the federal bench and none has sat since 2001.”

Many observers believe that for Pres. Bush, judicial philosophy will be the most important factor in choosing the next associate justice.

“For Bush, diversity is very important, but ideology trumps diversity,” Coyle writes. “We know that from the people he is not choosing and from those he is choosing. Key advisers and judge-pickers all have made it clear they are looking for people who share the president’s judicial philosophy.”