By Stuart Taylor Jr., National Journal
© National Journal Group Inc.
Friday, July 8, 2005

At least 20 possible Supreme Court candidates have been mentioned in various news reports or floated by administration insiders. And the president could quite possibly choose someone who has not been on any of the publicly known lists.

The five prospects profiled below stand out for two reasons. The first three had emerged by the last week in June, both in media reports and in accounts by lawyers close to the White House, as front-runners to replace Chief Justice William Rehnquist. He was widely expected to retire by the end of June because of bad health, but did not. The last two prospects have emerged from the pack (at least in media reports) since the July 1 retirement announcement by O'Connor, because of speculation that Bush might feel political pressure to replace her with another woman.

Alberto R. Gonzales

By all accounts, Bush very much wants to put his 49-year-old friend on the Court, although perhaps not just yet. As the first Latino justice, Gonzales would help Republicans court Hispanic voters. And his nomination might not provoke a big battle, because many Democrats see him as the most moderate-seeming Bush nominee they could hope for. They cite his record on the Texas Supreme Court, including a 2000 concurrence giving minors fairly broad access to abortion, and his praise for the June 2003 Supreme Court decision upholding very large racial preferences in university admissions. Conservative groups cite the same record as their reason for mobilizing to head off a Gonzales nomination. Meanwhile, civil libertarians deplore Gonzales's January 2002 memo to Bush deprecating the Geneva Conventions; denounce his apparent approval of a now-disavowed August 2002 Justice Department memo claiming virtually unlimited presidential power to order torture of suspected terrorists; and see him as a yes-man for a president disdainful of constitutional liberties. A child of uneducated Mexican-American immigrants, Gonzales joined the Air Force after high school, graduated from Rice University and Harvard Law School, and became a partner at a big Houston law firm. Then-Gov. Bush hired him in 1995 as his legal counsel; appointed him secretary of state in 1997; put him on the Texas Supreme Court in 1999; and made him White House counsel in 2001 and attorney general this year.

J. Michael Luttig

The 51-year-old Luttig is a hero to many conservatives and a red flag to liberals, as was Bork. He has been a judge on the U.S. Court of Appeals for the 4th Circuit, based in Alexandria, Va., since 1991. His powerfully reasoned opinions are often laced with scorn for colleagues who disagree. In a 2000 dissent, he argued that regulations adopted under the Endangered Species Act to protect a small number of red wolves in North Carolina exceeded the federal government's power. But Luttig has also written some opinions that liberals can admire. And how far he would be willing to go against precedent, if on the Supreme Court, is far from clear. Luttig clerked for then-Judge Antonin Scalia and Chief Justice Warren E. Burger. Later, he worked in the Reagan White House counsel's office; at a big law firm; and in senior Justice Department jobs before joining the 4th Circuit in 1991.

John G. Roberts Jr.

Roberts, 50, has assets, including a reputation as one of the nation's most effective, smartest, and best-liked appellate litigators; a seat on the D.C. Circuit, often described as the nation's second most important court, since the Senate confirmed him in May 2003; and a solidly conservative record combined with a paper trail that sheds relatively little light on what he would do as a justice. There is one arguable exception: In 1991, as deputy solicitor general, Roberts signed a legal brief noting the George H.W. Bush administration's previously stated position that "Roe was wrongly decided and should be overruled." But this was not necessarily his personal view. And in any event, Roe has become a more deeply entrenched precedent since 1991. Roberts graduated near the top of his Harvard Law School class; clerked for Judge Henry Friendly and then for Rehnquist; served in the Reagan Justice Department and White House counsel's office; became an appellate litigator; and was the principal deputy solicitor general under the first President Bush. He has argued dozens of cases before the Supreme Court.

Edith Hollan Jones

An outspoken conservative favorite for years, Jones was put on the U.S. Court of Appeals for the 5th Circuit by President Reagan in 1985, after 11 years in private practice as a bankruptcy specialist. She was a finalist for the Supreme Court nomination that went to Souter in 1990. Still only 56 years old, she has pleased conservatives and alarmed liberals by attacking Roe v. Wade, by pushing to speed up executions, and by authoring a wide range of other conservative decisions. In a recent interview with The American Enterprise, she complained that the judicial confirmation process "has become absurdly destructive of people's character, and destructive of the public's view of the judiciary." Jones graduated from Cornell and the University of Texas Law School and made partner in a Texas law firm while on maternity leave with her second child.

Edith Brown Clement

Elevated by Bush in 2001 from a trial court to the U.S. Court of Appeals for the 5th Circuit, the 57-year-old Clement, based in New Orleans, is hard to place on the ideological spectrum. She has written no opinions on hot-button issues. Small-government libertarians praise her 2004 vote to join a scathing Edith Jones dissent from a decision to block the building of a shopping mall on a site inhabited by six endangered bug species; environmentalists dislike it. But such stuff is not much to go on. A graduate of the University of Alabama and the Tulane Law School, Clement was a litigator for 16 years before becoming a trial court judge in 1991.

If Bush could design his ideal nominee -- to warm his own heart, bring Hispanics into the Republican Party, please his conservative base, put Democrats on the defensive, and burnish his legacy -- he might start with his friend Gonzales, then mix in Luttig's (or Jones's) ideological passion and Roberts's intellectual firepower.

But even if such a nominee could be engineered, he or she might not be the same after putting in some time on the job. When asked whether a justice ever changes his mind, Felix Frankfurter liked to say: "If he is any good, he does."

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