By MARY DEIBEL
Scripps Howard News Service
July 01, 2005
As with President Ronald Reagan's 1981 choice of O'Connor as the first woman named to the high court, President Bush may opt for another "first." But diversity may not get top priority when choosing among these people said to be on the short list.
SAMUEL ALITO JR., 55, of the 3rd U.S. Circuit Court of Appeals. A graduate of Princeton and Yale Law School, this former Justice Department lawyer was put on the Philadelphia-based appeals court by the first President Bush and quickly earned the reputation there of "Scalito" because his conservative views are considered akin to those of Justice Antonin Scalia, the first Italian-American on the Supreme Court.
On hot-button issues, Alito voted to let states make women tell their husbands if they plan to seek an abortion - a provision the Supreme Court struck down 5-4 as an "undue burden," with O'Connor casting the tie-breaker. He also has voted to uphold placement of religious symbols in holiday displays on government property.
JANICE ROGERS BROWN, 56. The child of Alabama sharecroppers who graduated from California State University and UCLA's law school, Brown was the first black woman to sit on the California Supreme Court and won recent Senate confirmation to the U.S. Circuit Court of Appeals for the District of Columbia. But her compelling personal story won't overcome her elevation to the Supreme Court.
An outspoken conservative in court and outside, she has criticized the expansion of government for causing "the rapid rise of corruption, the loss of civility and the triumph of deceit." In the midst of her D.C. Circuit confirmation fight, she told a religious gathering that "people of faith were embroiled in a 'war' against secular humanists who threatened to divorce America from its religious roots."
EDITH BROWN CLEMENT, 57, of the 5th U.S. Circuit Court of Appeals. A Birmingham, Ala., native and graduate of the University of Alabama and Tulane Law School, Clement was appointed by President George H.W. Bush to the Louisiana federal district court in 1991 and elevated by the younger Bush to the New Orleans-based appeals court in 2001.
A by-the-book conservative, her record on the bench has focused on routine cases and doesn't give religious conservatives reason to cheer or critics much to oppose. In a major federalism challenge to the Endangered Species Act, which the Supreme Court just declined to take up, she voted to rehear developers' complaint that lower courts blocked them from building on a site where insects live only in a Texas cave.
EMILIO GARZA, 58, of the 5th U.S. Circuit Court. A veteran appeals court judge, the Texan is widely considered to have the conservative credentials to be a Bush choice for chief justice. His selection as an associate justice would let Bush make good on his promise to appoint the first Hispanic member of the Supreme Court.
A graduate of Notre Dame and the University of Texas Law School, the Reagan appointee isn't the lightning rod others might be. But a 1997 opinion in which he regretted having to follow Supreme Court abortion precedents would guarantee a Senate confirmation fight.
ALBERTO GONZALES, 49, the Bush White House counsel who was confirmed last year as attorney general. A child of farmworkers who attended the Air Force Academy, Rice University and Harvard Law School, Gonzales was counsel to Texas Gov. Bush, Texas secretary of state and a Texas Supreme Court justice before joining Bush in Washington, but his record made him a target of left and right.
Liberals dislike his role in the legal memos that appeared to let U.S. forces mistreat prisoners in Iraq, Guantanamo and elsewhere. Conservatives question his credentials on abortion and affirmative action, and the conservative National Review frets that he would be "half a justice" because court rules could require that he not take part in Supreme Court cases on a range of issues including the Patriot Act, "enemy combatant" treatment and so-called partial-birth-abortion bans.
Bush's choice of Gonzales to be attorney general seemed geared to let people get to know him before a Supreme Court appointment, an option his patron, the president, may yet take.
EDITH HOLLAN JONES, 56, of the 5th U.S. Circuit Court. A graduate of Cornell and the University of Texas Law School, this former Houston lawyer and bankruptcy expert has left a paper trail since Reagan put her on the bench in 1985 - enough so the elder President Bush went with David Souter when the two were Supreme Court finalists in 1989.
Jones would prompt a confirmation battle royal because of her opinions freeing Texas schools from affirmative action, criticizing abortion and sex-harassment laws, and rejecting a new trial for a Texas death-row inmate whose lawyer slept through the trial.
MICHAEL LUTTIG, 51, of the 4th U.S. Circuit Court of Appeals. A graduate of Washington and Lee and the University of Virginia Law School, Luttig clerked for Justice Antonin Scalia and Chief Justice Warren Burger before the elder Bush tapped him to head the Justice Department Office of Legal Counsel, where predecessors include Rehnquist. Legal experts debate whether Luttig or fellow 4th Circuit Judge J. Harvey Wilkinson is the most conservative on this most conservative appeals court.
The 4th Circuit decision upholding the president's power to designate "enemy combatants" offers a clue: Luttig dissented on grounds it would give a president almost unfettered power in those circumstances. The murder of Luttig's father, Texas oilman John Luttig, showed his son's standing in the legal community when three Supreme Court justices - Scalia, Souter and Clarence Thomas - recused themselves from voting on halting Texas' execution of the elder Luttig's killer.
MICHAEL McCONNELL, 50, of the 10th U.S. Circuit Court of Appeals. A Kentucky native and graduate of Michigan State and the University of Chicago Law School, McConnell clerked at the Supreme Court for liberal lion William Brennan before making his name as a conservative constitutional scholar, abortion-rights critic and church-state expert at the universities of Chicago and Utah. Bush tapped him for the Denver appeals court in 2003, prompting academic allies across the spectrum to campaign for his Senate confirmation as a scholar in the mainstream.
He also is a favorite of the Federalist Society, a powerful group of conservative academics and lawyers, who see evidence of his independent thinking in his advice to congressional Republicans counseling against impeaching President Bill Clinton and his criticism of the Supreme Court for intervening in the 2000 presidential election.
McConnell crossed the Bush administration in a case the justices will hear next term in which his 10th Circuit opinion said the government "utterly failed" to show why a small New Mexico sect should not use hallucinogenic tea for religious rituals.
JOHN ROBERTS, 50, of the U.S. Court of Appeals for the District of Columbia. Roberts was tapped for the same court by Bush I only to see his appointment die when the elder Bush lost re-election in 1992. The younger Bush renominated Roberts, who was finally confirmed in 2003. A graduate of Harvard and its law school, Roberts clerked for Rehnquist before becoming associate White House counsel and chief deputy solicitor general in the elder Bush's administration. In the latter post, he played a critical role in urging the Supreme Court unsuccessfully to overturn Roe v. Wade, which legalized abortion.
Roberts argued 39 cases before the Supreme Court and lacks a paper trail of controversial court opinions - two qualities that could ease Senate confirmation. His short tenure on the appeals court has seen him side with the current Bush administration in barring U.S. prisoners of war in the Persian Gulf War from suing the new U.S.-backed Iraqi government for damages suffered under Saddam Hussein's government.
J. HARVIE WILKINSON, 60, of the 4th U.S. Circuit Court. A graduate of Yale and the University of Virginia's law school and law clerk and protege of the late Justice Lewis Powell, Wilkinson helped turn the 4th Circuit into the nation's most reliably conservative appeals court. Among other key decisions, Wilkinson wrote the opinion that sought to give Bush power to detain anyone he designates an "enemy combatant," which the Supreme Court eventually reversed.
Wilkinson has been widely regarded as a prospective chief justice should Bush opt to go outside the court for a successor to Rehnquist. One drawback: At 60, Wilkinson's age could work against his selection as an associate justice, given Bush efforts to shape U.S. courts for decades to come.
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