Supreme Court Short List

The Week Magazine has produced a profile of some candidates believed to be on the short list of those President Bush is considering for the Supreme Court, with an especial focus on their likely attitude toward the all-important abortion issue.

Samuel Alito
Alito, 55, of the Philadelphia-based 3rd Circuit Court of Appeals, would be the second Italian-American on the Court�along with Antonin Scalia, with whom he shares a staunch conservatism. In fact, many legal insiders refer to him as �ScAlito.� A former prosecutor, he�s demonstrated a strong law-and-order philosophy and a sympathy for religion in the public square: He once ruled that a Bible-study group should be allowed to proselytize at a back-to-school night. Alito has not spoken publicly about Roe v. Wade, the 1973 Supreme Court ruling legalizing abortion in all 50 states. But he did vote to uphold a Pennsylvania law requiring a woman to inform her husband before she seeks an abortion. The law was later struck down by the U.S. Supreme Court.

Edith Brown Clement
Clement, 57, was appointed by President Bush to the 5th Circuit Court of Appeals in New Orleans in 2001. She has not been a divisive figure, since her rulings have been relatively routine, and has not left a paper trail that Democrats could seize upon. In private practice, Clement specialized in civil litigation, defending oil, insurance, and marine-services companies, and is a member of the Federalist Society, an influential conservative law group.

Emilio Garza
Garza, 58, now serving on the 5th Circuit Court of Appeals, was President George H.W. Bush�s backup choice for the Supreme Court seat filled by Clarence Thomas. Since George W. Bush wants to appoint the nation�s first Hispanic justice, some observers consider Garza a front-runner�especially because social conservatives oppose the other Hispanic on the list, Alberto Gonzales. They consider Garza a reliable ally on abortion: In one ruling, he reluctantly voted to strike down an anti-abortion law in Louisiana because of the precedent set by Roe�but added, �I would allow the people of Louisiana to decide this issue for themselves.�

Alberto Gonzales
Gonzales, 49, became U.S. attorney general in February, having previously served as Bush�s counsel. In that post, he played a key role in formulating administration policies allowing harsher treatment of prisoners captured in Afghanistan and Iraq. Most Democrats opposed his nomination as attorney general. But now, the loudest criticisms of Gonzales are coming from the right, which suspects he might not vote to reverse Roe v. Wade. Gonzales, a Harvard Law School graduate who was born to poor farmworkers, has two factors in his favor: a compelling life story, and a strong, personal friendship with Bush.

Edith Jones
Jones, 56, was appointed to the 5th Circuit Court of Appeals by President Reagan in 1985. A Jones nomination would spark a certain battle because of her extensive paper trail. Jones invalidated Texas� school affirmative-action plan, and has been sharply critical of sex-harassment laws. She once rejected a new trial for a death-row inmate whose lawyer slept through the trial. Jones last year urged the Supreme Court to reconsider Roe v. Wade, calling it an �exercise of raw judicial power.�

J. Michael Luttig
Luttig, 51, serves on the conservative Richmond, Va.�based 4th Circuit Court of Appeals. A Texas native, Luttig clerked for Antonin Scalia before he joined the high court, and is highly respected in conservative circles. But like Scalia, he�s a fiercely independent thinker with a razor-sharp intellect, and believes that judges must not let their private views influence their �analytical rigor.� He has been consistently tough on criminals, which some observers connect to a personal tragedy: In 1994, his father was murdered during a carjacking.

Michael McConnell
McConnell, 50, was appointed by Bush to the 10th Circuit Court of Appeals in 2002. Earlier in his career, he clerked for Justice William Brennan, a liberal icon. But he went on to work as a legal advisor in the Reagan administration and the Office of Management and Budget, where he helped rein in regulatory agencies. He has been an outspoken critic of Roe v. Wade, calling it �an embarrassment to those who take constitutional law seriously.� But he also has criticized the legal reasoning in the Bush v. Gore decision, which handed the 2000 election to President Bush.

John Roberts
Roberts, 50, clerked for Chief Justice William Rehnquist. Appointed to the D.C. Circuit in 2003, Roberts� opinions have been generally conservative, but none has proven particularly controversial. As a lawyer in the Reagan and George H.W. Bush administrations, he argued that federal funds should not be spent on abortions, and that Roe v. Wade should be overturned. But colleagues say that he was simply reflecting the views of his clients in those administrations, not necessarily his personal views.

J. Harvie Wilkinson III
Wilkinson, 60, serves on the 4th Circuit, which he has helped transform into the nation�s most reliably conservative appeals court. An affable Virginian who is well liked by fellow judges, Wilkinson is also mentioned as a possible chief-justice nominee should William Rehnquist step down. In 2003, Wilkinson wrote the majority opinion that President Bush has the power to detain anyone he designates as an �enemy combatant.� The Supreme Court later overturned that ruling. He has criticized affirmative action, arguing that it has only served to deepen racial divisions. In 1998, he voted to uphold a Virginia law requiring doctors to notify a parent before performing an abortion on a minor. But in a book, Wilkinson has written that he is torn over whether abortion should be a constitutional right.

What’s particularly interesting, aside from the ideological issues, is how young they all are. Most of these people could serve 20-30 years.

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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. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.