Bush faces tough choice to fill Supreme Court vacancy

For social conservatives, long active in Republican politics, the moment of truth has finally arrived: a chance to move the US Supreme Court to the right, particularly on abortion, gay rights, and other divisive cultural issues.

But, with the announced retirement of centrist Justice Sandra Day O'Connor, will President Bush do what he has long said he intended - nominate a justice in the mold of Antonin Scalia or Clarence Thomas, both strongly conservative?

Enter the politics of the day. The atmosphere in Washington is fiercely partisan, and Bush is struggling to carry out his bold second-term agenda. Social Security reform has stalled, and the public is increasingly skeptical of the Iraq war. Polls also show the public has little use for what it sees as arcane sideshows - such as the Terri Schiavo imbroglio - while Americans worry about the price of gas, healthcare, and soldiers dying overseas.

In short, even as religious-conservative activists like Pat Robertson insist that the top three moral issues for the second term are "judges, judges, and judges," Bush may well decide that now is not the time to add an incendiary Supreme Court nomination to the mix, political analysts say.

"For Bush it's not just judges, although judges matter," says Norman Ornstein, a resident scholar at the American Enterprise Institute. "But to go for a confrontational battle now - knowing you'll have another coming in six months or less, knowing that the public attitude probably will be, 'there they go again,' especially if he picks someone who's a real ideologue - there's a price to be paid for that."

So it is not by accident that one top name under consideration, and actively floated in the press by the administration, is Attorney General Alberto Gonzales. He has many things going for him: He would be the first Hispanic justice, allowing Bush to replace one historic first with another - and perhaps win over some Hispanic votes to the GOP. Gonzales has just survived the rigors of a Senate confirmation, which included close grilling over his drafting of the so-called "torture memos." And he is the trusted friend of a president who values loyalty highly, having served Bush in various positions since 1995, beginning with general counsel to the then-Texas governor.

While conservative, the genial Gonzales is not seen as a hard-liner. And there's the rub: To social conservatives, he does not represent a reliable vote to overturn Roe v. Wade, the 1973 abortion-rights ruling. Conservatives also disagree with his defense of affirmative action. But it is abortion - the central issue in the coming confirmation battle - that gives activists on both sides the most heartache. As a justice on the Texas Supreme Court, Gonzales voted in favor of a pregnant teen's right to abortion without notifying her parents.

If Bush nominates Gonzales, it is debatable which side will raise the bigger fuss, social conservatives or liberal activists. Liberals have made clear that they will closely scrutinize whomever Bush puts forward, not just on their record on abortion, but also on other issues such as civil liberties and the environment. Chances that liberals will oppose whomever is nominated are high. The question is, how hard to fight. If it's Gonzales, the opposition would likely be less intense than if it were a more straight-down-the-line conservative, analysts say.

From the social conservatives' perspective, the White House is well aware of the grassroots objections to Gonzales. Publicly, religious conservatives express confidence that Bush will "do the right thing" and name someone else they can support. Privately, one activist said, "I'd be a little surprised if the president was going into a fight knowing that all his troops weren't behind him."

Gary Bauer, another religious-conservative activist, says he's not worried that Gonzales might be nominated, because he trusts Bush to keep his word. "He's said so many times that Scalia and Thomas are his examples of good judges, so to me it didn't seem credible that Gonzales would be in that same category," says Mr. Bauer, head of the group American Values. "I do think that the president knows there are high expectations that he will attempt to bring the Supreme Court closer to the values of the people who have elected him twice."

When talk centered more on Chief Justice William Rehnquist as likely to retire first, many of the names bandied about were of solidly conservative white men. Now, says legal historian David Garrow, "all these encomiums to O'Connor as the first woman really make it, in presidential-legacy terms, a matter of much greater historical heft to name the first Hispanic to replace the first woman."

Other analysts insist that Bush does not have to name a woman or a minority to Justice O'Connor's seat. But when O'Connor announced her resignation on July 1, the White House made clear women were under consideration. One name that shot to the top in conservative circles was Edith Brown Clement, a conservative judge on the Fifth Circuit Court of Appeals.

Still, the Gonzales talk has not gone away. On conservative blogs, Mr. Garrow notes, the only question is whether Bush nominates Gonzales now or to replace Justice Rehnquist. Some religious conservatives agree that Gonzales is still in the running - despite the ramifications for Bush's base.

"I think it's a live option, only because the president has such confidence in him, and the president's confidence may in fact trump the lack of support in the grassroots," says Deal Hudson, a conservative Catholic activist.

Jim Guth, an expert on religion and politics at Furman University in Greenville, S.C., surmises that the better path for Bush might be to nominate someone now whom religious conservatives can support and save Gonzales for later. He mentions two possible names, Fourth Circuit Judge J. Harvie Wilkinson and Tenth Circuit Judge Michael McConnell, as filling that bill - while also not likely arousing a filibuster in the Senate.

Still, Professor Guth believes Bush could still finesse a Gonzales pick. "I've always been impressed with Mr. Bush's ability to stay in touch with rank-and-file conservative Protestants, think what they're thinking, make the moves that may not please the movement organizations but generally seem satisfactory or even appealing to more mainstream religious conservatives," Guth says. "As we go on through the new millennium, the movement organizations in some ways matter less and less."

One sure thing is that several more days of speculation lie ahead. The White House says Bush will not name a nominee until after he returns from Europe on July 8. More likely, he will wait at least until the following Monday, July 11.