George W. Bush Supreme Court candidates

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John Roberts, now Chief Justice, is pictured here with President Bush.
President Bush introducing nominee Harriet Miers.

Speculation has abounded over potential nominations to the Supreme Court of the United States by George W. Bush since before his presidency.

In the summer of 2005, this speculation became newsworthy, due to the announcement of the retirement of Associate Justice Sandra Day O'Connor; George W. Bush announced his nominee, John G. Roberts, Jr., as O'Connor's replacement on July 19.

On September 5, 2005, two days after the death of Chief Justice William Rehnquist, Bush successfully renominated Roberts as the 17th Chief Justice of the United States. On October 3, Bush nominated White House Counsel Harriet Miers to succeed O'Connor. However after mounting opposition to her nomination on October 27, Miers requested to withdraw her nomination and President Bush "reluctantly" accepted.

Speculation also surrounds the possible retirements of the oldest Associate Justice John Paul Stevens, 85 as of 2005, and Associate Justice Ruth Bader Ginsburg, who is said to be in poor health (Ginsburg had cancer in 1999, which has since gone into remission). Neither Stevens or Ginsburg, however, have made any public announcements concerning either their health or retirement plans.

Overview

Throughout much of the history of the United States, the Supreme Court of the United States was clearly the least powerful branch of the government, just as is often considered the Founding Fathers' intention, and nominations to that body, although important, were not the source of great political controversy as they are today. Until the death of Chief Justice Rehnquist and impending retirement of Associate Justice O'Connor, the composition of the Supreme Court had remained unchanged since 1994, the second longest time period without a membership change in U.S. history (the longest having been from 1812 - 1823).

Furthermore, the current court has been sharply divided on a number of high-profile issues, including abortion rights, affirmative action, the extent of Congressional power under the Commerce Clause, gay rights, the separation of church and state under the Establishment Clause, sovereign immunity and states' rights. The number of close votes in cases involving these areas suggests that a change of one or two key justices could completely shift the thinking of the Court on such issues.

Politics

When asked about the kind of justices he would appoint to the Supreme Court, President George W. Bush responded: "I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law. Judges interpret the Constitution. ... And that's the kind of judge I'm going to put on there." Specifically, Bush in 1999 told reporter Fred Barnes of the magazine The Weekly Standard that he would nominate judges to the court in the mold of controversial originalist Justice Antonin Scalia [1].

The "nuclear option"

The Republican-controlled Senate has threatened repeatedly to invoke what Senator Trent Lott termed the "nuclear option" to confirm the President's nominees to the bench over the filibuster by the Democrats. However, it is unlikely that Democrats will object too stridently if the President replaces a particularly conservative Justice (such as Rehnquist) with someone who is equally or less conservative. The retirement of Justice O'Connor, who provided a moderate swing vote on many issues, greatly increased the chances of such a battle. The choice of Roberts, however, was met with some enthusiasm even from Democrats, so such a battle started to seem more unlikely. However, there is indeed a long history of Supreme Court nominees being rejected.

In May, 2005, seven senators of both parties, called the Gang of 14, in a deal to avoid such a situation, agreed to drop the filibuster against three controversial appellate judicial nominees: Priscilla Owen, Janice Rogers Brown, and William Pryor. Some observers noted that the inclusion of these three extremely conservative nominees made it likely that Democrats could not object if any of the three (or a judge with similar beliefs) were nominated to the Supreme Court.

Consultations with the U.S. Senate

As the 2004 - 2005 term of the Supreme Court ended, there was a flurry of rumours that Rehnquist, who was undergoing treatment for thyroid cancer, would soon retire. On June 27, 2005, Senate Minority Leader Harry Reid (D-Nevada) suggested that the next appointment to the Court should come from outside the judiciary. Reid suggested the appointment of one of four Republican Senators, none of whom possessed previous judicial experience: Mel Martinez of Florida, Mike DeWine of Ohio, Mike Crapo of Idaho and Lindsey Graham of South Carolina. The list did not include the name of Republican Senator John Cornyn of Texas, a former justice on the Texas Supreme Court. Reid declined to address the omission [2].

Unexpectedly, on July 1, 2005, it was not Rehnquist announcing his retirement, but rather O'Connor. On July 12, Bush met at the White House with the party leaders and ranking Judiciary Committee members from the two major parties — Republicans Bill Frist and Arlen Specter, and Democrats Reid and Patrick Leahy — to discuss the nomination process. During the meeting, the Democrats offered the President the names of three "moderate" Hispanic federal judges that they could accept: Sonia Sotomayor of the Second Circuit, Edward Prado of the Fifth Circuit, and Ricardo Hinojosa, a Texas district judge. Reid later told the press he was disappointed that the President hadn't chosen to discuss his own choice of possible candidates with the Democrats. In the conservative magazine National Review, the three candidates suggested by the Democrats were quickly dismissed as being offered in bad faith because they were too liberal for a conservative president to seriously consider [3].

On the same day as the meeting with the President, First Lady Laura Bush announced in an interview during an official visit to Africa a preference for her husband to nominate a woman to O'Connor's seat. Bush was surprised at his wife's public comments on the Supreme Court, but said he would be open to hearing her advice when she returned from her trip.

Announcement of John Roberts

On July 19, 2005, Bush announced his first nominee. There was intense speculation that it would be moderate Judge Edith Brown Clement of the Fifth Circuit Court of Appeals in New Orleans, or conservative Judge Edith H. Jones, also from the Fifth Circuit. However, it was John G. Roberts, Jr., a highly regarded former Supreme Court litigator and conservative judge on the D.C. Circuit Court of Appeals, who was chosen [4][5]. About an hour before the televised announcement, information was leaked concerning the choice of Roberts as demonstrated by press releases from ABC News [6] and Fox News [7], both of which were issued before the formal announcement but assumed Roberts' nomination as a fact.

On September 3, 2005, Rehnquist died. Two days later, on September 5, Bush announced that he would switch Roberts' nomination and instead nominate him for the newly vacant post of Chief Justice of the United States, once again leaving O'Connor's vacancy without a replacement nominee.

The failed nomination of Harriet Miers

During a press conference on Monday, September 26, Bush implied that his next nominee would be either a woman or a minority. In making his decision concerning O'Connor's replacement, he said he would keep in mind that, "diversity is one of the strengths of the country" [8]. John Roberts was confirmed by the Senate on Thursday, September 29.

During the evening of Sunday, October 2, John Fund, a columnist for the Wall Street Journal, announced on the radio show of blogger Matt Drudge that his sources had told him that the nominee would be moderate Hispanic Judge Consuelo M. Callahan of the Ninth Circuit. At the same time, the website ConfirmThem.com [9] reported that the selection had been made in favor of conservative Fourth Circuit Judge Karen J. Williams. The next morning, on October 3, 2005 at 8:00 am, President Bush nominated little known White House Counsel Harriet Miers to be O'Connor's replacement on the court. Later, columnist Robert Novak reported that the two finalists for O'Connor's position had been Miers and Callahan [10]. No schedule for the Senate confirmation process has been announced yet.

Opposition against Miers' nomination was centered around conservative pressure groups and conservative GOP Senators as she was seen as not qualified enough and unsufficiently conservative with regards to key conservative issues as abortion. On October 27, 2005, President Bush "reluctantly" accepted Supreme Court nominee Harriet Miers's request to withdraw her nomination. The failure of the Miers nomination to even reach the stage of confirmation hearings after Bush had been so adamant in the face of major opposition from his own political base may be perceived as a setback for Bush.

Possible O'Connor Replacements

On September 6, Specter encouraged the President to fill O'Connor's position with a woman, saying that the Supreme Court should have a minimum of two female justices [11]. On September 9, Laura Bush reiterated her previous wish to also see a female nominee [12].

On the Thursday before Roberts' confirmation hearing, one of Reid's aides said that the nomination of several candidates said to be on the President's short list to replace O'Connor — conservative appellate Judges J. Michael Luttig, Emilio Garza and Edith Jones — would be unacceptable to the Democrats, implying that any of them would be filibustered [13]. Several days later, Specter made it known that he felt that it was too early for Bush to elevate Attorney General Alberto Gonzales to the Supreme Court [14].

Roberts' confirmation hearing for Chief Justice was held from Monday, September 12, to Friday, September 16. During the week of the hearing, there was much talk that Priscilla Owen would be the next nominee, but columnist Robert Novak reported that by Friday, Reid had told Frist that Judge Owen would also be filibustered if chosen [15].

On Wednesday, September 21, Bush had another meeting with Senators Frist, Specter, Reid and Leahy to discuss possible Supreme Court nominations. On the day before, Laura Bush mentioned publicly for the third time that she would like to see a female nominee. At the same time, Reid stated that the nomination of any of the previously filibustered appellate nominees would be viewed by the Democrats as "a poke in the eye with a sharp stick" [16]. He restated this position during the meeting with the President when he warned against nominating either Brown or Owen [17]. Again, Reid and Leahy offered the names of judges Sotomayor, Prado and Hinojosa [18]. Again, Bush did not offer any names of his own to discuss.

Names frequently mentioned

Following is a list of individuals that have been mentioned in various news accounts as the administration's most likely potential nominees:

United States Courts of Appeals

File:Circuitmap.png

United States Senators

Executive branch officials

Other backgrounds

References

  1. Green, Frank (22 November 2004). 4th Circuit's Luttig said potential high-court pick. Times-Dispatch.
  2. Woellert, Lorraine (22 November 2004) What The New Court Will Look Like. (Business Week)
  3. www.cleveland.com/news Article on "Potential Supreme Court Nominees"
  4. High Court Prospects Emerging
  5. CNN discussion (CNN)
  6. Possible Bush Nominees
  7. Odds on Supreme Court Appointments
  8. The Supreme Court Shortlist: The views of the likely candidates to succeed Rehnquist (MSN)
  9. Highest court buzzing
  10. O'Connor's decision to retire sets off nomination, confirmation battles (MSNBC)
  11. Speculators eye Cornyn for Supreme Court post
  12. Frist, Reid Talk Potential Court Nominees (Washington Post)
  13. "Supreme Court: Likely candidates" (BBC)
  14. Justice O'Connor retires (Washington Post)
  15. Possible Successors (New York Times)
  16. Justice O’Connor to retire (Chicago Tribune)
  17. Fla. Justice Gets Backing for U.S. Supreme Court Seat (www.law.com)
  18. Sources: Senators suggest court candidates
  19. Update: Bush to announce Supreme Court nominee in prime-time TV appearance, (The San Diego Union Tribune)
  20. Riechmann, Deb. Bush Nominates Federal Judge Roberts, (ABC News)
  21. Bush Gets Chance to Name Chief Justice (ABC news)
  22. Who will be the next Chief justice? (CNN.com)
  23. Bush vows to replace Rehnquist quickly (World Peace Herald)
  24. White House Said to Shift List (New York Times)
  25. Justice Dinh

External links

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