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Bush sets short list for court
Sources name 2 conservative appeals judges
By Jan Crawford Greenburg
Washington Bureau
October 30, 2005
WASHINGTON -- Rebounding from the failed nomination of Harriet Miers to the Supreme Court, President Bush is poised to select between two of the nation's leading conservative federal appeals court judges--both experienced jurists with deep backgrounds in constitutional law--for what promises to be a bruising Senate confirmation battle.
With an announcement expected Sunday or Monday, administration officials have narrowed the focus to Judges Samuel Alito of New Jersey and J. Michael Luttig of Virginia, sources involved in the process said. Both have sterling legal qualifications and solid conservative credentials, and both would set off an explosive fight with Senate Democrats, who are demanding a more moderate nominee to replace Justice Sandra Day O'Connor.
Sources close to the process cautioned that Bush still could pick someone else, noting that he had wanted to name a woman to replace O'Connor. He had considered Priscilla Owen of Texas, another federal appeals court judge, before tapping Miers, and Owen remains a distant possibility, administration sources said.
But sources in the administration and others involved in the process--outside the handful in Bush's inner circle who were weighing the selection this weekend at Camp David--said a nominee other than Alito or Luttig would come as a surprise.
"Those are the only two names anyone is aware of," said a source who has been closely involved in the selection process and who asked not to be identified.
The conservative legal community that ardently opposed Miers' nomination--and helped force her withdrawal on Thursday--would embrace either judge, although Luttig is more well-known and would win the most enthusiastic support.
Luttig also could provoke the most opposition, at least initially, from Democrats who are threatening to filibuster anyone they deem too conservative.
The White House is focusing on Alito and Luttig because both have the judicial experience and intellectual heft that Miers' opponents felt she lacked for the critical O'Connor vacancy. Both are so well-versed in constitutional law that they could deftly handle senators' questions. Miers, a non-judge, did not impress key senators in private meetings and struggled in practice sessions for her confirmation hearings.
Administration officials, caught off-guard by the opposition to Miers, realize they cannot afford another misstep. Both Alito and Luttig would have strong support from Republican senators and prominent conservatives who were lukewarm or outright hostile to Miers' nomination.
With Miers, conservatives believed Bush squandered a historic opportunity to nominate a heavyweight whose intellectual force and clear philosophy could help change the direction of the Supreme Court. Conservatives have criticized the court --and O'Connor as its key swing vote--as too liberal on social issues such as abortion and affirmative action and too willing to take on policy matters that should be left to elected legislatures.
`At the top tier'
"If the president decides to go with a noted conservative judge, and you're looking at someone of the caliber of Sam Alito or Mike Luttig, then you're talking about people at the top tier of constitutional jurisprudence," said Jay Sekulow, chief counsel of the American Center for Law and Justice.
Alito and Luttig also have been thoroughly vetted, so a debate on their nominations would focus on their conservative judicial philosophies and views on the law, sources involved in the process said.
Numerous other candidates, including many of the leading women judges, were either too little-known or inexperienced to energize the base or, more significantly, had personal or potential ethical issues that could give Democrats more fodder to oppose them, sources said.
"In this climate, and exactly where this process is right now, the person needs to be thoroughly vetted," said one Republican adviser close to the process who asked not to be identified. "You want no sideshows. This needs to be a debate on judicial philosophy and the role of the judge."
Multiple sources said they expected an announcement Sunday afternoon or early Monday.
By nominating Alito or Luttig, Bush would electrify his supporters who revolted over the Miers nomination.
"They are widely respected among the bench and bar nationally for being careful jurists, faithful to the Constitution and proponents of judicial restraint," said Wendy Long, chief counsel of the Judicial Confirmation Network, a conservative legal group that did not embrace Miers. "They have so much in common substantively that their differences are more stylistic."
Alito, 55, has been on the Philadelphia-based federal appeals court for 15 years; Luttig, 51, has served on the Richmond-based appeals court for 14 years. Both worked as lawyers in the Reagan and George H.W. Bush administrations. Alito was the U.S. attorney in New Jersey before his appeals court nomination; Luttig had worked in a prominent law firm before joining the government.
"In some ways, they're a lot alike. They are both brilliant, and they don't go out of their way to show you that," said John Nagle, a professor and associate dean at Notre Dame Law School who knows both men.
Alito, the son of two public school teachers who grew up in Trenton, is more reserved and soft-spoken. He is often is called "Scalito," because his intellect and Italian heritage draw comparisons to Justice Antonin Scalia. But his personality and self-effacing manner are different from the boisterous and, at times, bombastic Scalia.
Luttig, who grew up in Tyler, Texas, where his father was an engineer, is more outgoing. In some ways, he is more like Scalia, for whom he clerked when Scalia was on the federal appeals court. Like Scalia, he is willing to confront colleagues head-on when he believes they don't adhere to established law. As a result, he sometimes reaches decisions that cannot be considered conservative.
"As judges, Mike has been more aggressive in his opinion writing and not shied away from expressing things," Nagle said. "Mike has a reputation for being more provocative, but my sense is it's always been a passion for getting the law right."
A traditional battle
By nominating either judge, Bush would draw Republicans into a more traditional battle with Democrats, who already have indicated they will oppose both men, primarily because of opinions they have written on abortion regulations. Both judges would be subject to tough scrutiny on whether they would vote to overturn Roe vs. Wade, the Supreme Court decision that said women had a constitutional right to an abortion.
Alito is widely perceived as easier to confirm than Luttig, but on the abortion issue he could be more controversial. He wrote a dissent in a 1991 case that would have upheld a Pennsylvania law requiring women to notify their husbands before obtaining an abortion unless they were worried about their safety or believed the husband was not the baby's father.
Luttig has voted to uphold abortion regulations, including a Virginia parental-notification law. But he also wrote in a 2000 case that a Supreme Court decision upholding a woman's constitutional right to an abortion was "super-stare decisis," a legal principle that means "let the decision stand."
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), who supports abortion rights, referred approvingly to Luttig's "super-stare decisis" language during the confirmation hearings for Chief Justice John Roberts Jr.
On other issues, both judges have a well-defined conservative philosophy that courts should take a back seat to legislatures on social issues. That would put them in the company of Roberts, who articulated during his Senate confirmation hearings that courts should have a limited role in
society.
