Possible Court Nominees Pose a Quandary for Bush

President Bush has narrowed down his candidates for replacing Chief Justice William Rehnquist, who is expected by many to retire next week (or maybe not), to three, including the controversial Attorney General Alberto Gonzales.

Possible Court Nominees Pose a Quandary for Bush (WaPo, A1)

President Bush’s advisers are focusing their search for a new Supreme Court justice on a trio of candidates who could present the president with a choice that would help shape his legacy — pick a reliable conservative to anchor the court for decades or go for history by naming the first Hispanic chief justice at the risk of alienating his base.

While the cancer-stricken Chief Justice William H. Rehnquist has not publicly signaled his decision, many in the White House and around Washington expect him to announce his retirement at the end of the court’s current term next week, opening the nation’s top judicial post for the first time in 19 years and setting up a potentially savage nomination battle.

White House officials have prepared for the prospect by culling long lists of possible candidates, poring through old cases and weighing a variety of factors from judicial philosophy to age. Bush and his inner circle have had tightly held deliberations and no one can say for sure whom he might pick for chief justice, but outside advisers to the White House believe the main candidates are federal appeals Judges John G. Roberts and J. Michael Luttig and possibly Attorney General Alberto R. Gonzales.


A Gonzales appointment would be a politically appealing “first” that could ease the confirmation process among Democrats and help expand the Republican base, according to some strategists. But many conservative leaders see him as too moderate on issues such as abortion and affirmative action, and a Gonzales-for-Rehnquist trade would effectively move the court somewhat to the left.

Gonzales makes no sense as a Chief Justice appointment. He’s the worst of all worlds: a bruising confirmation battle plus a weakening of Bush’s ideological position on the Court. Rehnquist’s replacement would ideally be Antonin Scalia or Clarence Thomas, a known quantity who, while controversial, would ultimately win and guide the Court in the right direction. Failing that, a younger conservative judge from one of the Circuit Courts of Appeal makes sense.

If Bush is set on appointing Gonzales, it would be more appropriate to wait for the retirement of Sandra Day O’Connor or John Paul Stevens. While they’re both Republican appointees, they’re both significantly to the left of Rehnquist. Putting Gonzales into one of those slots, especially Stevens’, would be an upgrade. Tactically, too, it would make more sense. The Democrats are likely to fight much harder against a very conservative appointee replacing a more liberal justice. Further, an additional year or two would give Gonzales time to re-establish his reputation by good work in his current office, moving his rather minimal associaton with Gitmo further into the background.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Bush’s insistence on putting someone new as Chief Justice is puzzling. Justices have a nasty habit of changing course once appointed. Better to use a known quantity like Scalia, or preferably, Thomas.

    Thomas is young enough to have a good thirty year run as Chief, though I’m not sure how suited he is to the specifics of being Chief, mostly because I don’t know the substance of the job.

  2. bryan says:

    Sometimes I wonder what Bush is thinking. Other times, I wonder if this isn’t Rove floating a trial balloon to divert attention from their real nominee.

  3. Anderson says:

    Bush’s insistence on putting someone new as Chief Justice is puzzling. Justices have a nasty habit of changing course once appointed. Better to use a known quantity like Scalia, or preferably, Thomas.

    But even then, you still are appointing someone to replace that justice. And while being Chief isn’t negligible, I doubt that it’s hugely important, except for the potential of a poor leader to generate opposition (e.g., Burger).

    I personally very much doubt whether Scalia or Thomas has the temperament to make a good Chief. Rehnquist is a veritable pragmatist compared to those guys.

    I think Gonzales’s “centrist” label wouldn’t prove accurate once he was on the Court and thus not accountable to anyone. Anyone who could endorse a memo on Presidential war powers that didn’t even mention Youngstown is unlikely to suddenly find himself a closet liberal.

  4. Dr. Weevil says:

    Call me cynical, but . . . .
    I’ve read more than one commentator suggesting that Bush’s first nominee is going to be turned down after a brutal fight even if it’s the judicial equivalent of Mother Teresa. Perhaps the idea is to let a close friend be the sacrificial lamb, then appoint who he really wants?