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Bush's Battle for the History Books

Whomever he nominates to replace the retiring Sandra Day O'Connor on the Supreme Court, President Bush's choice will reveal much about how he sees his legacy.
 
 
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In a presidency most noteworthy for its wars, George W. Bush now faces a defining moment on a different battlefield: the judiciary. Whomever he nominates to replace the retiring Sandra Day O'Connor on the Supreme Court -- the first Hispanic? Another woman? One of many respected white male federal appeals court judges on some notional short list? -- President Bush's choice will reveal much about how he sees his legacy.

The battle ahead will also show just how much political capital the president has in a second term marked so far by sagging job approval and growing opposition to the Iraq war and Social Security reform.

The first skirmish has been with an important element of his base: the social conservatives. When Justice O'Connor announced her retirement, the outcry over the possibility that Bush might nominate Attorney General Alberto Gonzales, whom conservatives do not view as reliably on their side, was swift and fierce. "I'd be a little surprised if the president was going into a fight knowing that all his troops weren't behind him," one activist said privately.

Publicly, most conservative activists don't want to threaten Bush, and instead express confidence that he will "do the right thing." Bush's oft-repeated intention to name justices in the mold of Antonin Scalia and Clarence Thomas, both strongly conservative, looms large as he contemplates his choices.

Gary Bauer, a religious-conservative activist, says 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."

Bush himself has demonstrated his desire to move the judiciary to the right, having filled dozens of federal judgeships with conservatives during his 4.5 years in office. But Bush faces competing imperatives. The atmosphere is fiercely partisan, and it is not in his -- or the ruling Senate Republicans' -- interest for Washington to go up in smoke over a Supreme Court confirmation. Much of the public has made clear that it has little use for what it sees as arcane sideshows -- such as the Terri Schiavo imbroglio -- while most Americans are worrying about the price of gas, healthcare, and soldiers dying overseas.

So it is not by accident that the administration actively floated Gonzales's name recently, when speculation centered on an expected court vacancy. Gonzales has many things going for him: He would be the first Hispanic justice 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, having served Bush in various positions since 1995, he is the trusted friend of a president who values loyalty highly.

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.

There have been some hints that Gonzales may not even want to join the Supreme Court, but if he is nominated, it is debatable who will raise the bigger fuss, social conservatives or liberal activists.

Chances that liberals will oppose whoever is nominated are high. The question is, how hard to fight. If it's Gonzales, the opposition would probably be less intense than if it were a more straight-down-the-line conservative, analysts say.

If Bush does name a strong conservative to the seat -- such as Michael Luttig of the Fourth Circuit Court of Appeals -- he could trigger a fierce battle in the Senate that brings with it a possible filibuster and a Republican move to ban judicial filibusters. The so-called "Gang of 14" bipartisan group of senators who averted a filibuster showdown recently on federal judges could add another element of protection to Bush.

When talk centered more on a retirement of Chief Justice William Rehnquist, many 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."

Some analysts insist Bush doesn't have to name a woman or a minority to O'Connor's seat. But when O'Connor announced her resignation on July 1, the White House made it clear women were under consideration. Some names under speculation are Edith Brown Clement, Edith Jones, Priscilla Owen, and Janice Rogers Brown, all federal appeals court judges.

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. 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.

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 [and make] moves that may not please the movement organizations but ... [appeal] to more mainstream religious conservatives."