President Bush Looking Into Possible Supreme Court Picks

National   |   Steven Ertelt   |   May 30, 2005   |   9:00AM   |   WASHINGTON, DC

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by Steven Ertelt Editor
May 30, 2005

Washington, DC ( — Speculation is increasing that pro-life Supreme Court justice William Rehnquist is soon planning to announce his retirement from the nation’s high court. White House sources seem to indicate that President Bush is aware of the impending retirement and is actively moving forward by vetting a short list of possible replacements.

Seemingly hinting that a fight over a Supreme Court nominee is on the horizon, White House spokesman Scott McClellan said last week that President Bush will pick judges who have a "conservative judicial philosophy."

"The president is going to continue to move forward on appointing individuals who have a conservative judicial philosophy and believe in interpreting the law, not making law from the bench," McClellan indicated.

Sean Rushton, director of the conservative Committee for Justice, told the Associated Press that Rehnquist’s retirement announcement could come as early as June, when the current session of the court concludes.

"The vacancy could come anytime after this Memorial Day weekend, we think," Rushton said.

He added that Bush could already have his list narrowed down to just a handful of possibilities.

"They have been winnowing the list down for some time now. I imagine they’re down to maybe three or five — a handful anyway — who are their first choices," he explained.

John McGinnis, a law professor at Northwestern University, told AP he thinks the president may have already made up his mind on a replacement.

"This White House – I congratulate it on its ability to be secret,” McGinnis said. "It’s entirely possible that Rehnquist has already communicated his intention to step down and the White House has a plan absolutely set.”

Groups on both sides of the abortion debate will be heavily engaged in the nominations battle once a replacement jurist is announced.

Pro-life groups have been mobilizing pro-life advocates and working to build phone trees and email networks.

Abortion advocacy groups have been running advertisements intended to scare their supporters into thinking the Supreme Court is just one vote away from overturning the Roe v. Wade abortion case. Two votes are needed to give the court a pro-life majority.

"This Supreme Court fight is shaping up to be the political equivalent of Armageddon in Washington," Republican consultant Scott Reed told Reuters.

A survey of the most often discussed possibilities for Supreme Court appointments indicates many are either pro-life or have issued decisions on legislation favorable to the pro-life community.

Samuel A. Alito, Jr.

As a judge on the Third Circuit Court of Appeals, Judge Alito upheld a Pennsylvania pro-life law that the Supreme Court overturned in Planned Parenthood v. Casey. He wrote an opinion in that case arguing for a standard that would permit virtually any restriction on abortion. From New Jersey, Alito is known in legal circles as "Scalia lite" in reference to pro-life Supreme Court Justice Antonin Scalia.

Janice Rogers Brown

Judge Janice Rogers Brown is the first black woman to serve on California’s Supreme Court. Her nomination to a federal appeals court has been blocked by Senate Democrats.

In 1997, she issued a well-researched dissent in a case where the California Supreme Court overturned a pro-life law requiring abortion facilities to obtain parental consent before performing an abortion on a teenage girl.

Brown accused the court’s plurality of abrogating the constitutional rights of parents, described the court’s thinking as circular, and called the case "an excellent example of the folly of courts in the role of philosopher kings."

"When fundamentally moral and philosophical issues are involved and the questions are fairly debatable," Brown wrote, "the judgment call belongs to the Legislature. They represent the will of the people."

She also dissented in a decision requiring Catholic Charities to pay for contraception coverage in employee health insurance plans. The decision concerns pro-life groups because it could lead to a requirement that abortion be covered as well.

Brown has also garnered the support of the California voters. In 1998, 76% of voters decided to keep Brown on the bench in their state, the highest percentage of supporting votes in that election.

Emilio Garza

Emilio Garza is a federal appeals court judge on the New Orleans-based 5th Circuit Court of Appeals. Judge Garza’s opposition to abortion is beyond question. He wrote two separate opinions explicitly criticizing Roe v. Wade and suggesting it be overturned.

Edith Jones

Judge Edith Jones of the Fifth Circuit Court of Appeals is frequently mentioned as a contender for the high court. She was considered for the Supreme Court seat that eventually went to Clarence Thomas.

If pro-life advocates are looking for a justice who strongly opposes Roe v. Wade, Jones should be a favorite.

When the 5th Circuit denied a request in October by Norma McCorvey to approve her motion to overturn the Roe v. Wade ruling, Judge Jones issued an opinion blasting the Supreme Court’s opinion in Roe and saying it needs to be re-examined.

She called Roe an "exercise of raw judicial power," and cited evidence McCorvey presented showing abortions hurt women.

Jones, a Reagan nominee, wrote that the "[Supreme] Court’s rulings have rendered basic abortion policy beyond the power of our legislative bodies."

"The perverse result of the Court’s having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter," Jones added.

Jones chided the nation’s high court for being "so committed to ‘life’ that it struggles with the particular facts of dozens of death penalty cases each year," but failing to grasp the fact that abortions destroys the lives of unborn children.

"One may fervently hope that the court will someday acknowledge such developments and re-evaluate Roe and Casey accordingly," Jones said of the 5000 pages of evidence with affidavits from over 1000 woman who have been harmed by abortion.

Michael Luttig

Judge Michael Luttig is a member of the Richmond-based 4th U.S. Circuit Court of Appeals. Luttig was a clerk for pro-life Supreme Court Justice Antonin Scalia when Scalia was an appeals-court judge.

Later, Luttig worked for the first Bush administration and helped the former president win the appointment of Clarence Thomas to the nation’s high court.

Luttig is widely considered one of Bush’s top judicial prospects, especially given his young age, 50, and his ability to shape the direction of the court for years to come. He is considered the most conservative judge on one of the most conservative appeals courts in the nation.

He is regarded as a threat by abortion advocacy groups because he opposes abortion.

In 1998, Luttig issued an emergency stay of a lower-court order that blocked a new Virginia law banning partial-birth abortions. Eventually, Luttig and the 4th Circuit allowed the pro-life law to remain in place, but were overruled by the U.S. Supreme Court and the state’s law was struck down.

However, should Luttig be selected for the Supreme Court, he would side with the four judges who comprised the minority in a 2000 case striking a Nebraska partial-birth abortion ban. The legal battle over the federal ban on partial-birth abortions is headed to federal appeals courts and will likely reach the Supreme Court.

John Roberts

Judge John Roberts, a former clerk of pro-life Chief Justice William Rehnquist, recently won confirmation to the U.S. Court of Appeals for the DC Circuit, a traditional steppingstone to the Supreme Court. He is a former legal counsel to President Reagan.

As Principal Deputy Solicitor General during the first Bush administration, Roberts played an active role in efforts to limit abortion. Roberts argued in a brief before the U.S. Supreme Court that “[w]e continue to believe that Roe was wrongly decided and should be overruled. [T]he Court’s conclusion in Roe that there is a fundamental right to an abortion … finds no support in the text, structure, or history of the Constitution."

In Rust v. Sullivan, the Supreme Court considered whether the Department of Health and Human Services could counsel women to have abortions. Roberts said regulations prohibiting that were constitutional.

Larry Thompson

Larry Thompson was deputy attorney general and the Bush administration’s highest-ranking black law-enforcement official until he quit in 2003 to join a think tank, the Brookings Institution. A longtime friend of Justice Clarence Thomas, Thompson now serves as the general counsel for PepsiCo.

Harvie Wilkinson

Judge J. Harvie Wilkinson III, also a member of the Richmond, Virginia-based federal appeals court, is considered a top prospect for the first Supreme Court seat that opens up.
Wilkinson opposes abortion and is considered someone who may be palatable to Democrats in the Senate because of his more moderate views on other political issues, such as environmental policy.

He voted to uphold a state law allowing parents to know when their teenage daughters were considering an abortion.