Bush's Second Supreme Decision

He wants a woman to replace Justice O'Connor -- or maybe a Hispanic, to appeal to that growing demographic. One name fits both requirements

By Lorraine Woellert

Democrats are lining up their votes against John Roberts to be the next Chief Justice of the Supreme Court, with Senate Minority Leader Harry Reid, the entire Congressional Black Caucus, and a handful of women's groups becoming the latest to make their opposition official on Sept. 20, each citing Roberts' risk to the rights of women and minorities.

"No one suggests that John Roberts was motivated by bigotry or animosity toward minorities or women," when he argued for rolling back civil rights protections during the Reagan Administration, Reid thundered from the Senate floor. And "I do not condemn Judge Roberts for using the word 'amigos' 20 years ago in a nonpublic memo. But I was stunned when at his confirmation hearing he could not bring himself to express regret for using the term, or recognize that it might cause offense.... I intend to cast my vote against this nominee."

Attribute the saber-rattling to Washington politics -- even as Democrats play to their base, Roberts is all but guaranteed confirmation when the full Senate votes next week. But the battle over the next nominee likely won't be such a walk in the park. Sources close to the White House say the President wants to nominate a woman to replace retiring Justice Sandra Day O'Connor, but he also hasn't given up his desire to make history by appointing the high court's first Hispanic.


  Right now, the unofficial short list is dominated by women, including a few familiar names such as Judge Edith Jones and Judge Edith Clement, both members of the U.S. Court of Appeals for the Fifth Circuit, whom the White House initially considered for Chief Justice William Rehnquist's seat. Both will find favor among social conservatives and business, but both are hard-liners who would ignite serious opposition from the Left and spark a fight that easily would eclipse the campaign against Roberts at a time when the increasingly unpopular President can least afford it.

More provocative, from a political point of view, are the not-so-familiar names on Bush's list. Among them, Connie Maria Callahan, whom Bush nominated to the U.S. Court of Appeals for the Ninth Circuit in 2003. Callahan, who answers to the name Connie but whose given name is Consuelo, might be the answer to Bush's dilemma. She's Hispanic. She's a woman. And she wins high marks from the legal community.

A former district attorney in San Joaquin, Calif., Callahan established the office's first child abuse and sexual assault unit. She handled more than 50 jury trials during her tenure as a prosecutor. In 2003, she won confirmation to the Ninth Circuit by a vote of 99 to 0.


 Bush also is said to be weighing the qualifications of other candidates. There's Alice Batchelder, a former high school English teacher named to the U.S. Court of Appeals for the Sixth Circuit in 1991 by President George H.W. Bush.

Another contender is Michigan State Supreme Court Justice Maura Corrigan, a Federalist Society member who was elected to the bench in 1998, serving two terms as Michigan chief justice from 2001 to 2004, after serving a stint as a county prosecutor.

Rounding out the list is Judge Karen Williams, who was named to the U.S. Court of Appeals for the Fourth Circuit, the nation's most conservative appeals court, by the elder Bush in 1991 at the urging of then-Senator Strom Thurmond (R-S.C.).

Callahan might be lining up as a White House favorite. At 55, she would have the opportunity to leave a lasting imprint on the High Court. But although she would likely face only token opposition from the Left -- Senator Dianne Feinstein (D-Calif.) wholeheartedly endorsed her confirmation to the Ninth Circuit -- she would draw the ire of social conservatives who already are chafing at what they consider to be a lackluster performance by Roberts during his Senate confirmation hearings last week.


  The darling of the Religious Right, both inside and outside the Beltway, remains Judge Priscilla Owen, who was elevated to the Court of Appeals for the Fifth Circuit, thanks only to the bipartisan deal introduced by 14 Senators who stepped in to prevent a political meltdown in the Senate over judicial confirmations. But Owen, for that reason and others, remains too politically radioactive to warrant serious consideration by the White House.

Important as the social conservative base is to the GOP, avoiding a firefight from the Left might be more critical at this juncture. And Bush has other political and personal considerations to weigh. Sources close to White House political strategist Karl Rove say Bush 43 made a solemn promise to Bush 41 that he would do anything to avoid harming brother Jeb's chances at the Presidency.

If Bush 43 really wants to give the Florida governor a leg up, he might want to scout for ways to boost GOP support among not only women but also Hispanics -- a growing influence politically and demographically. They're expected to make up nearly a quarter of the U.S. population by 2050, so even a small percentage shift in support could determine who wins and who loses elections.

One school of thought says naming Attorney General Alberto Gonzales to the High Court would be a way to curry that favor. But another says a Justice Callahan would be even better. Both would draw fire from the far Right. But in any close political equation, a little grousing from social conservatives on the margins isn't necessarily a bad thing.

Woellert is a correspondent in BusinessWeek's Washington bureau