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Gonzales, Brown Among Potential Choices to Replace O'Connor

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

Last Updated: July 1, 2005 14:02 EDT

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