July 1 (Bloomberg) -- President George W. Bush said he will
consult with his advisers and members of the U.S. Senate on
choosing a replacement for Supreme Court Justice Sandra Day
O'Conner, who announced today that she will retire from the
court. Bush's spokesman, Scott McClellan, said the president
won't make a decision until he returns from the July 6-8 meeting
of the Group of Eight industrial nations in Scotland.
Bush said he wants ``potential nominees who meet a high
standard of legal ability, judgment and integrity and who will
faithfully interpret the Constitution and laws of our country.''
The following is a list of possible candidates, in
alphabetical order, compiled from law articles and interviews
with legal scholars, representatives of advocacy groups that
monitor the court and political insiders. The departure of the
court's first female justice may put pressure on Bush to name
another woman to the post.
-- Judge Samuel Alito Jr., 55, is a former Reagan
administration official who was appointed to the Philadelphia-
based 3rd Circuit Court of Appeals by President George H.W. Bush,
the current president's father, in 1990.
Alito played a role in two high-profile abortion disputes.
In 1991 he voted to uphold Pennsylvania spousal-notification
requirements that were later struck down by the Supreme Court. In
2000 he joined a three-judge court in voiding a New Jersey
prohibition on a late-term procedure that opponents call partial-
birth abortion.
In 1996 Alito voted in favor of restricting the power of
Congress, dissenting when the 3rd Circuit upheld a federal ban on
machine gun possession.
-- Judge Janice Rogers Brown, 56, won Senate confirmation
last month to join the U.S. Court of Appeals for the D.C.
Circuit, benefiting from an agreement among a group of
Republicans and Democrats that averted a showdown over the power
of Senate Democrats to block Bush's court appointments.
Bush nominated Brown, a member of the California Supreme
Court since 1996, to the appeals court in 2003, only to be
thwarted by a Democratic-led filibuster in Senate.
Brown is an advocate for the rights of private property
owners. In 2002, she criticized a San Francisco requirement that
hotels open up some rooms to long-term residents, saying ``theft
is theft even when the government approves of the thievery.''
In opposing Rogers's appellate nomination, Democrats seized
on her speeches as well as opinions. In remarks to the Federalist
Society in Chicago in 2000, Brown described the Supreme Court
decisions in the 1930s upholding New Deal legislation, as ``the
triumph of our own socialist revolution.'' She also equated ``big
government'' to ``slavery.''
In criminal cases, Rogers has advocated limits on the
government's power to search suspects and their property. In one
such case, a 2002 drug dispute, she signaled she may not feel
bound by Supreme Court precedent. ``If our hands really are tied,
it behooves us to gnaw through the ropes,'' she wrote.
-- Judge Edith Brown Clement, 57, was appointed by Bush to
the 5th U.S. Circuit Court of Appeals in New Orleans. From 1991
to 2001 she was a U.S. District Court judge in the Eastern
District of Louisiana.
She wrote a majority opinion in a 2003 case that slashed a
jury's award of damages to the estates of a mother and 3-year-old
daughter who were killed when their car was struck by a tractor
trailer. The jury had awarded $200,000 to each estate for pain
and suffering. Clement's majority opinion reduced the mother's
award to $30,000 and eliminated the daughter's award, saying
there was no evidence of her ``awareness of the impending
collision.''
Bush wants Congress to limit pain and suffering claims in
court cases, proposing a cap of $250,000 in non-economic damages
in medical malpractice cases.
-- Judge Emilio Garza, 57, has served as a federal judge
since 1988, when he was appointed as a district judge by then-
President Ronald Reagan. The San Antonio resident was promoted to
the 5th Circuit in 1991 by George H.W. Bush.
Garza, who would be the court's first Hispanic member, has
suggested that if he were a justice, he would vote to overturn
the constitutional protection for abortion rights. In a 1997
opinion, he wrote that ``ontological issues such as abortion are
more properly decided in the political and legislative arenas.''
In that same opinion, Garza questioned the Supreme Court's
entire line of ``substantive due process'' decisions, including
rulings that guarantee the rights to use contraceptives and to
marry.
-- Attorney General Alberto Gonzales, 49, a long-time
adviser to Bush, was named by the president as the first Hispanic
to head the Justice Department.
Gonzales was confirmed as attorney general in February over
the objections of Democrats, who said the torture of suspected
terrorists at Abu Ghraib prison in Iraq stemmed from government
policies he helped devise as White House counsel. Republicans
said Democrats were making Gonzales a scapegoat for prisoner
abuse committed by a small number of renegade soldiers.
He has drawn criticism from conservatives who say he is too
moderate on issues such as abortion rights and affirmative
action. In 2000, while a member of the Texas Supreme Court,
Gonzales joined a decision allowing a girl to bypass the state's
parental notification requirement for minors seeking an abortion.
Gonzales's concurring opinion said while the law ``may be
personally troubling to me as a parent, it is my obligation as a
judge to impartially apply the laws of this state without
imposing my moral view on the decisions of the legislature.''
The son of Mexican-American migrant farm workers who didn't
complete elementary school, Gonzales graduated from Harvard Law
School. He served as general counsel to then-Texas Governor Bush,
who later appointed him to the Texas Supreme Court and brought
him to Washington as White House counsel after the 2000 election.
-- Judge Edith Hollan Jones, 56, was named by Reagan to the
New Orleans-based 5th U.S. Circuit Court of Appeals, on which she
has served since 1985.
She is a frequent guest speaker at the Federalist Society, a
self-described conservative legal research foundation. Jones
openly criticizes Roe v Wade, the 1973 Supreme Court decision
that legalized abortion. In a 2004 opinion, she wrote that ``if
courts were to delve into the facts underlying Roe's balancing
scheme with present-day knowledge, they might conclude that the
woman's 'choice' is far more risky and less beneficial, and the
child's sentience far more advanced, than the Roe Court knew.''
At a hearing in January, Jones labeled ``not reasonable''
the 24-year prison sentence given to ex-Dynegy executive Jamie
Olis for accounting fraud. Jones said she was ``very
sympathetic'' to arguments by Olis's lawyers that the sentence
was too harsh compared with those given to other executives who
pleaded guilty to white-collar crimes. The court has not ruled on
Olis's appeal.
-- Judge J. Michael Luttig, 51, clerked for then-Judge
Antonin Scalia -- now a Supreme Court justice -- on a federal
appeals court and worked in the Reagan and first Bush
administrations before being appointed to the Virginia-based 4th
U.S. Circuit Court of Appeals.
Luttig has advocated new limits on the power of Congress,
voting to strike down a law letting rape victims sue their
assailants in federal court and to limit the scope of the
Endangered Species Act.
Luttig backed parental-notification requirements for minors
seeking abortion in 1998. Two years later, he voted to strike
down a law barring ``partial-birth'' abortion, saying he was
bound by a Supreme Court decision. In 2004, he voted to bar South
Carolina from offering license plates that said ``Choose Life.''
Although Luttig has a reputation for conservatism in some
circles, the law journal Judicature found him to be a moderate
compared with other prospective Bush nominees, ranking fifth
among six judges in percentage of conservative decisions.
-- Judge Michael W. McConnell, 50, was a law professor for
two decades before being confirmed for a seat on the Denver-based
10th Circuit in 2002.
As an academic, McConnell made his biggest mark on the issue
of religion, arguing against strict church-state separation and
for a principle of government neutrality.
McConnell supported school vouchers that could be used at
religious schools. Yet he also argued against allowing prayer at
public school graduations, a position that would put him at odds
with Scalia and Supreme Court Justice Clarence Thomas. As a
professor, McConnell also criticized Roe v. Wade.
His appeals court nomination drew fire from a number of
outside groups, criticism that helped delay a vote for a year and
a half. Still, more than 300 fellow professors, including such
liberals as Harvard law professor Laurence Tribe, signed a letter
supporting McConnell. The Democratic-controlled Senate ultimately
approved him by voice vote.
Before entering academia, McConnell clerked for Justice
William Brennan, a champion of individual rights. He also worked
in the Reagan administration as an assistant solicitor general
and as an official in the Office of Management and Budget.
-- Judge John G. Roberts Jr., 50, joined the D.C. Circuit in
2003 after arguing 39 times at the Supreme Court on behalf of the
U.S. government and private clients. He is a former law clerk for
Chief Justice William Rehnquist and served as deputy solicitor
general under the first President Bush.
As a private litigator, Roberts often served corporate
clients, among them Toyota Motor Corp. and the American Gaming
Association. Roberts also argued at a lower court for a group of
states suing Microsoft Corp. for antitrust violations.
The Senate confirmed him for his judgeship by voice vote in
May 2003 after two years of delay. With barely two years'
experience as a judge and only a handful of academic articles on
his resume, Roberts has less of a track record than other
candidates for the high court.
Roberts voted to reconsider a three-judge panel's ruling that
upheld application of a law to protect a California toad species,
saying it ``seems inconsistent'' with Supreme Court precedent. At
the same time, he suggested he would be open to other arguments
in favor of the law.
-- Judge J. Harvie Wilkinson III, 60, is a former law
professor and editorial-page editor who served the Reagan Justice
Department before his 1984 appointment to the 4th Circuit.
Wilkinson clerked for Justice Lewis Powell, a fellow Virginian
and family friend, during the court's 1972-73 term.
Wilkinson in 1998 voted to uphold parental-notification
requirements for minors seeking abortions. In 2004, he backed the
appeals court decision barring South Carolina from offering
license plates that said ``Choose Life.''
He wrote the court's majority decision in 1996 upholding the
``don't ask, don't tell'' policy that bars acknowledged
homosexuals from the military.
He supports limits on congressional power, once voting to
strike down a law authorizing suits by rape victims. Wilkinson
might place fewer restrictions on Congress than Luttig, who
dissented from Wilkinson's 2000 majority opinion applying the
Endangered Species Act to the protection of red wolves.
Judicature found Wilkinson to be the most conservative of
six potential nominees. He took conservative positions on 87
percent of criminal justice issues, according to the study.
To contact the reporter on this story:
Greg Stohr in Washington at
gstohr@bloomberg.net ;
Laurence Arnold in Washington at
larnold@bloomberg.net