As the Supreme Court ended another session, the question many Washington watchers asked was whether ailing Chief Justice William Rehnquist would step down -- and if so, who would replace him. The surprise retirement of Justice Sandra Day O'Connor added to President Bush's options.
The president's dilemma is whether to elevate a currently sitting justice. Historically, such appointments are rare. Of the 16 chief justices in American history, only five previously served as associate justices.
Most often mentioned as a candidate for elevation is Associate Justice Antonin Scalia (shown left). But he is 69, and Republican presidents in the last half-century have shown a pronounced affinity for younger nominees who would stay at the court longer. Justice Clarence Thomas is the other name mentioned often for possible elevation. While Thomas is in his mid-50s, he has reportedly taken himself out of consideration, perhaps preferring not to repeat the donnybrook that marked his first close confirmation.
So, if not Scalia or Thomas, then who?
There is a short list of names that is widely agreed on, though the batting order is not, and names seem to come and go daily at the edges.
For President Bush, the overall question is what he wants to accomplish. Does he want a scholarly and brilliant legal star with a proven conservative record, who would potentially wield considerable influence on this and future courts? Or does he want a proven and qualified conservative who might provide Republicans with a political opportunity. In short, does he want a Hispanic nominee?
If he wants the latter, the two names mentioned most frequently are Emilio Garza, a federal appeals court judge from Texas, and Attorney General Alberto Gonzales.
Emilio Garza has served for 14 years on the 5th U.S. Circuit Court of Appeals, earning a reputation as a staunch conservative and foe of Roe v. Wade. The Almanac of the Federal Judiciary gives him mixed reviews on legal aptitude, writing style and participation at oral argument. He was reportedly considered for a Supreme Court vacancy in 1991 by the president's father, President George H.W. Bush, but rejected as "not ready for prime time." That, however, was 14 years ago.
Alberto Gonzales goes way back with the president, having served as his trusted legal adviser when Mr. Bush was governor of Texas. Gonzales served in the same position at the White House during the president's first term, before being named attorney general for the second term. But Gonzales has been criticized by Democrats for his role in developing the infamous "torture memos," and privately criticized by conservative Republicans for not being conservative enough. The rap from the right stems in large part from his brief tenure on the Texas Supreme Court, when he interpreted state abortion law and U.S. Supreme Court rulings in a manner that conservatives didn't like. Some conservatives have also criticized Gonzales' role when he was at the White House in pushing for what they consider to be a "namby-pamby" position on affirmative action in a Supreme Court case.
If the president decides that he wants a conservative legal star as chief justice, and he doesn't elevate Justice Scalia, then there are some strong contenders on the lower courts — judges all appointed by President Reagan, President Bush or his father.
The three most often mentioned are J. Michael Luttig, from the conservative 4th Circuit based in Virginia; John Roberts, from the D.C. Circuit Court of Appeals; and Michael McConnell, from the 10th Circuit Court in the West.
J. Michael Luttig, 51, has been on the appeals court for 14 years and is one of the most conservative judges in the country. He is extremely plugged in politically, having served in top jobs in both the Reagan and first Bush administration. Nationally recognized among conservatives as a brilliant proponent of states rights, he is far more conservative on some questions — national security and civil liberties, for example — than Chief Justice Rehnquist, and even the man he clerked for, Justice Antonin Scalia. Luttig's biggest confirmation problem could be that he served as the behind-the scenes maestro for the Bush administration during the controversial Clarence Thomas confirmation hearings in 1991. At the time, Luttig had already been confirmed, though not seated, as a federal judge. His presiding over a politically explosive strategy of attacking Thomas' accuser Anita Hill when Luttig was already a confirmed federal judge has raised questions from some ethics experts.
John Roberts served as a law clerk to Chief Justice Rehnquist, deputy solicitor general, and head of the appellate section for the firm of Hogan & Hartson. He has argued 39 cases before the Supreme Court and won 25. Pro-choice groups would likely oppose his nomination because as deputy solicitor general, Roberts wrote briefs urging the reversal of Roe v. Wade. But Roberts would likely find many Democratic lawyers who have worked with him over the years who would urge confirmation. He has been on the D.C. Circuit for less than two years, leading some in the conservative movement to say that he doesn't yet have a reliable enough conservative record. But few who know him have ever thought that Roberts is anything but a reliable conservative in ideology, and his short tenure on the appeals court has born that out so far.
Michael McConnell, of the 10th Circuit, is the first choice of many on the religious right — and many in the liberal academic community, too. Religious groups love him because as a law professor at the University of Chicago and the University of Utah, McConnell wrote seminal works urging greater accommodation between church and state and opposing abortion. Liberal academics love him because they see him as open-minded, willing to debate and above all, independent. It is that very streak of independence that, according to some administration sources, makes his nomination perhaps less likely. Indeed, McConnell has written somewhat critically about the Supreme Court's decision in Bush v. Gore.
The short list also includes other judges, among them J. Harvie Wilkinson of the 4th Circuit in Virginia, and Samuel Alito of the 3rd Circuit, based in Philadelphia. Wilkinson, 60, is the former chief judge of the appeals court in Richmond on which he sits. He is a respected conservative, a former top official in the civil rights division of the Reagan Justice Department and a former clerk to Justice Lewis Powell. He is almost as conservative as Judge Luttig, but the two have exchanged unusually sharp words in their opinions. Among hard-line conservatives, there is some suspicion that Wilkinson is "squishy." Yet few would dispute that Wilkinson would be a stellar nominee for chief, the kind of witness who would be very difficult for Democrats to attack.
Judge Samuel Alito is sometimes dubbed "Scalito" by lawyers who appear before him, a reference to conservative views much like those of Justice Scalia. Alito, however, is far more reserved in his demeanor than the flamboyant Scalia. Appointed to the appeals court by the first President Bush, Alito served in the Justice Department during the Reagan and Bush administrations. He gets rave reviews from lawyers for his legal acumen and has written some controversial opinions, including one on abortion reversed by the U.S. Supreme Court.
And just in case this list isn't long enough, there are other names floating around. One of them is former Solicitor General Ted Olson. As a private lawyer, he represented President Bush in the Supreme Court case against Al Gore, the case that decided the 2000 election. Olson is a brilliant advocate, and he won praise from the left and right for his four years as the Bush administration's chief appellate lawyer. But at 64, Olson may be too old for the decision makers at the White House.
Also mentioned frequently these days are Texas Sen. John Cornyn, a former Texas State Supreme Court justice and state attorney general; and another Texan, federal district court Judge Ricardo Hinojosa, who chairs the U.S. Sentencing Commission.