From the WSJ Opinion Archives
THE NEXT JUSTICES
The Contenders
Now who will replace Justice O'Connor?
Before Tuesday's cabinet meeting, President Bush told reporters that the short list of nominees to fill his second Supreme Court vacancy was wide open. With a smile toward the journalists present, he announced that he therefore welcomed wide media speculation, especially about Attorney General Alberto Gonzales. What a kidder.
And what a difference a devastating hurricane makes. Two months ago, the White House met speculation over the president's first pick with antagonism. The president himself moved to quell talk about his friend the attorney general in threatening tones. But the president knew his audience. Journalists are particularly eager over Gonzales talk, mostly because they sense that conservatives do not share their enthusiasm. They've got that right. The fact is that not one conservative leader I know supports a Gonzales nomination. Those who publicly say they do are not telling the truth. They either are Texas friends or are fearful of losing White House access and fund-raising support.
It must be hard for White House aides now charged with advising the president on a second pick to imagine how they can improve on John Roberts. How true. They can't. The president's next pick must be someone very different from Roberts. The object is not to have someone who is more conservative. That would be hard to accomplish. The next nominee must be differently credentialed. The overriding challenge for the president is to rid us of the stigma of the Bork nomination, which produced a Republican stealth nominee like David Souter, by naming someone with a precise record, the kind of record William Rehnquist had in 1986.
This high goal is not imperiled by the political desire the president may have to name either a woman or a Hispanic. These are the categories to which the president is likely to limit his new short list. The White House may also look at senators; an option that previous presidents have taken when they wanted a smooth Senate confirmation of a solid nominee. Since the president invited it, let's speculate on these.
The women
• Edith Jones.A Texan who has sat on the Fifth U.S. Circuit Court of Appeals for 20 years, Judge Jones has a deep judicial record that compares well to Rehnquist's. Unlike many nominees, she has the real affection of many conservative leaders.
• Priscilla Owen. A Texan who joined the Fifth Circuit earlier this year as part of the filibuster compromise, Judge Owen has more appellate experience than past Supreme Court nominees, but having served on a state supreme court with limited jurisdiction, she has written on few hot-button issues. She has the attributes of wide name recognition as the subject of three years of Democrat obstruction, and she is well known in the White House. Karl Rove ran her campaign for election to the Texas Supreme Court.
• Janice Rogers Brown. Judge Brown joined the U.S. Circuit Court of Appeals for the District of Columbia as part of the filibuster compromise. Her principled writings over nearly a decade as a California Supreme Court justice have made her a hero to conservatives, especially after the U.S. Supreme Court's unpopular decision in Kelo v. New London on taking of private property, a topic upon which she has famously opined. The White House would score several points by nominating a brilliant, eloquent and charming black woman raised in the Deep South.
• Maura Corrigan. Now on the Michigan Supreme Court, she was popularly elected three times, first to the appeals court where she served as chief judge and then to the state high court. She has 13 years' appellate experience and is a widow with two grown children. It would be hard for Democrats to oppose a popular judge from a swing blue state.
The Hispanics
• Emilio Garza. A Texan of Mexican descent who has served since 1991 on the Fifth Circuit, Judge Garza has all the attributes and clear judicial record for which conservatives are looking. Judge Garza has the additional gift of being friendly, affable and gracious.
• Danny Boggs. A 19-year veteran of the Sixth U.S. Circuit Court of Appeals and currently its chief judge, the Cuban-born Judge Boggs has a deep judicial record and an overwhelming intellect.
• Raoul Cantero. The first Hispanic on the Florida Supreme Court was vetted for that post by the president's brother, Gov. Jeb Bush. Justice Cantero's record is not deep, but it is principled and he would meet another conservative goal of seating the court with young jurists. Justice Cantero is 45.
The senators
• Jeff Sessions. The second-term Alabama senator is one of the Senate's brightest and most endearing personalities. In 1986 the then-U.S. attorney was rejected by the Senate Judiciary Committee when President Reagan nominated him to be a federal district judge. He went on to become Alabama's attorney general before being elected in 1996 to replace one of the men who voted against him, Democrat Howell Heflin. He now sits on the Judiciary Committee alongside several other erstwhile opponents, including Chairman Arlen Specter.
• John Cornyn. The Texas freshman, elected in 2002, has served as state attorney general and a Texas Supreme Court justice. In the Senate he has carved out a place as a constitutional scholar and a principled thinker. Mr. Cornyn's nomination would allow the Texas governor to appoint Rep. Henry Bonilla to the Senate.
• Mel Martinez. Florida's recently elected senator has no judicial record but wide experience as the secretary of housing and urban development and mayor of Orlando. He is a devout Catholic with a remarkable personal story and is Hispanic.
There are other names who don't fit these three categories. Among these is former assistant attorney general Larry Thompson. Mr. Thompson would add to the number of blacks on the court and is a solid conservative, but with no judicial record. The president would win wide applause in naming former solicitor general Ted Olson; the man many conservative leaders believe deserves the job. It would make sense for the 9/11 president to name Mr. Olson, who lost his wife in the attack on the Pentagon. The president would also win admiration if he considered the popular and highly respected Douglas Ginsburg, only 59, the chief judge of the D.C. Circuit, whose 1987 nomination to the Supreme Court was scuttled. When Reagan nominated Judge Ginsburg to replace Justice Lewis Powell, the president described the young judge as "unpretentious." That has not changed, but 20 years of appellate experience later, Judge Ginsburg has the finest record on the federal appellate bench.
These are some of the names that the president's friends will champion, and that he may consider when he recalls again his promise to nominate jurists with discernible records like those of Antonin Scalia and Clarence Thomas.
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears on Mondays, Wednesdays and Fridays.
