Supreme Court scuttlebutt.

The law, lawyers, and the court.
Sept. 20 2005 5:31 PM

Who's Next?

Supreme Court scuttlebutt.

Making one perfect Supreme Court pick is hard enough. Making a second one may be impossible, as the Bush administration is learning. John Roberts' cakewalk through the Senate has changed the calculus. The Democrats swear they won't be slow on the trigger for the next nominee. Republican women are anxious. The far right is determined to gain rather than lose ground on the court. And that's just the beginning. Here's what is being whispered, screamed, or hissed into the ears of the decision-makers:

1. It's Girl Time. Whether or not the gender of the next nominee should matter, it does to Republican women lawyers. When Sandra Day O'Connor and Laura Bush expressed enthusiasm for a female justice, these women took hope. Priscilla Owen of the Fifth Circuit Court of Appeals reportedly flew to Washington for a meeting with Bush recently. But many of the Republican women who want to see one of their own chosen aren't satisfied with Owen. And they also aren't wild about the other women mentioned most often as candidates, federal judges Janice Rogers Brown, Edith Jones, and Edith Clement. The women on the shortlist are crazy or lightweights or both, the naysayers complain. In their most despairing moments, they worry that the administration has deliberately cut down the pool of women candidates by refusing to seriously consider anyone who isn't a federal appeals court judge (with the exception of Attorney General Alberto Gonzales and former Deputy Attorney General Larry Thompson). According to the rumor mills, no prosecutors or politicians or law firm partners are under consideration. "They haven't done that well appointing women to the courts of appeal, so now they're going to say, 'Well gee, there isn't anyone qualified?' " one law professor sputtered. "They need a really smart woman and maybe in their universe she doesn't exist, but she does in mine!"

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

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None of the women whose names are being bandied about this week are known intellectual stars like Roberts, which makes it seem harder than it is for Bush both to satisfy his female base and appoint another world-class legal mind.

2. John Roberts, The Sequel. If Bush really wants to put his mark on the law, he'll pick someone with the intellectual weight to lead the court and the personality to persuade his colleagues to follow him (or to think he's following them). Who is another Roberts? The clearest choice is Michael McConnell, the former University of Chicago law professor who had the support of fellow academics across the ideological spectrum when he was chosen to sit on the U.S. Court of Appeals for the 10th Circuit in 2002. McConnell is the kind of guy deft enough to give a warm eulogy for William Brennan, the justice for whom he clerked, without departing from his own far-right stances. The idea of a Roberts-McConnell one-two punch on the court thrills conservative academics. Judge Michael Luttig also plays well in the heavyweight field, but he's not universally known as a nice guy. He's got detractors who say he has John Bolton tendencies.

It may be that the female John Roberts is out there. Like Roberts, Maureen Mahoney is a leading Supreme Court litigator; she's been arguing before the court since 1988. Like Roberts, she's from the Midwest (born in South Bend, Ind.). Like Roberts, she clerked for Chief Justice William Rehnquist. Like Roberts, she was one of Kenneth Starr's deputies when he was solicitor general for Bush I. Mahoney's problem: She has argued in favor of affirmative action—on the winning side for the University of Michigan Law School in the 2003 Supreme Court case Grutter v. Bollinger. But that shouldn't disqualify her if defending development restrictions around Lake Tahoe—a bad loss for the property-rights movement—didn't disqualify Roberts. Also, Mahoney isn't a judge. In 1992, George H.W. Bush nominated her for a federal trial bench seat in Virginia, but Bill Clinton became president before confirmation. So, she's still a lawyer at the Washington, D.C., firm Latham & Watkins. At first blush, it would seem odd for the administration to single out a plain old lawyer for the nation's highest court. At second blush, why not? Mahoney is smart and she knows the court.

3. Someone Bush Trusts. Mahoney lacks what another late-surging female candidate has—a longtime spot in the president's inner circle. White House Counsel Harriet Miers has been vetter-in-chief of the Supreme Court candidates. What if Bush selects her over them, in the Dick Cheney tradition? Before she got her current job, Miers was assistant to the president and his staff secretary. She was the person who knew where all the paper in the White House was coming and going. She never talked to reporters. She came with Bush from Texas, where she was chair of the state lottery commission and the first woman president of the Texas State Bar. But Miers isn't a skilled Supreme Court advocate. She has no reputation outside the insular Bush circle. Firepower-wise, she looks like a big gamble.

Is that also true of Alberto Gonzales? He's not known in Washington for his great intellect. On the other hand, the opinions he wrote as a justice on the Texas Supreme Court are solid, consistent, and well-reasoned. Gonzales, of course, gives the religious right fits. But he's still the candidate to beat if you believe the chatter at the Department of Justice, which dismisses the recent Owen sightings as a decoy.

Inevitably, Roe. If narrowing or eliminating the right to abortion is the administration's priority, then Gonzales is out. Owen and Jones are the surest bets. McConnell looks good, too: As a private citizen, he signed a 1996 statement supporting a constitutional amendment to ban abortion, and he has testified before Congress in opposition to a bill designed to limit the access of protesters to abortion clinics.

Of course, a reliable stance against abortion also means a fight. All those Democratic senators who seemed unable to ask Roberts a coherent question would have a bull's-eye they couldn't miss. And there are good long-term political reasons for the Republican leadership to prefer chipping away at Roe to scrapping it and to care more about other issues before the court, like protecting business interests and curtailing environmental protections.

So many agendas, so hard to choose.

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