Bush's Battle for the History Books

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.