Possible Nominees to the Supreme Court
The Washington Post
Friday, July 1, 2005; 11:12 AM
Here is a list of potential nominees for the Supreme Court:
Samuel A. Alito, Jr.
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Samuel A. Alito, Jr., 55, is a judge on the U.S. Circuit Court of Appeals for the 3rd Circuit.
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Nominated by President George H. W. Bush to the court in 1990, Alito was educated at Princeton University and Yale Law School. His work experience includes stints as assistant to the Solicitor General and deputy assistant to the Attorney General during the Reagan Administration, and as U.S. Attorney for the District of New Jersey.
Alito has voted to uphold regulations on abortion, notably as the lone dissenter in a 1991 case in which the 3rd Circuit struck down a Pennsylvania law's requirement that women tell their husbands before having an abortion. The three-judge panel preserved most elements of the abortion control law, including a 24-hour waiting period and a requirement that minors notify their parents. But Alito argued in his dissent that the spousal notification provision did not impose an "undue burden" and also should have been upheld.
In other rulings, Alito wrote for the majority in 1997 in finding that Jersey City officials did not violate the Constitution with a holiday display that included a creche, a menorah and secular symbols of the Christmas season. In 1999, he and his colleagues found that a Newark policy that allowed medical, but not religious, exemptions to a ban on police officers having beards violated the First Amendment.
-- Christopher Lee
John Cornyn
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Sen. John Cornyn, 53, is the junior senator from Texas, elected in 2002.
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Since his election, Cornyn -- nicknamed "Johnny Boy" by Bush -- has been an outspoken proponent of the president's administration and the conservative branch of the GOP. But prior to arriving in Washington, Cornyn's reputation as Texas Attorney General and as a Texas Supreme Court justice was that of a moderate Republican.
His seven-year tenure on the court was characterized by decisions favoring business and limiting government control. But he also wrote the majority decision in 1995 upholding Texas' so-called Robin Hood school finance law in which wealthier school districts share money with poorer ones, a plan that Republicans have been trying to abolish since.
During his four years as state attorney general, Cornyn angered some local Republicans for trying, unsuccessfully, to modify a ruling by a previous attorney general that eliminated affirmation action programs at Texas colleges. He sued auto and home insurance firms for underpaying claims and for deceptive trade practices and prosecuted unscrupulous nursing home operators, as well as appeared before the U. S. Supreme Court to defend a small Texas school district that broadcast student-led prayer before football games. The court ruled against the school-sponsored practice.
In the Senate, Cornyn, 53, has led efforts to defend Bush's judicial nominees and to fight filibusters of nominees, writing National Review articles that label opponents as "liberal special interest groups" engaged in "vicious politics." He spearheaded the push to adopt constitutional amendments banning gay marriage and flag-burning and favors school vouchers, prayer in public schools, extending the Bush-initiated tax cuts beyond 2010 and privatizing Social Security. He opposes abortion and partial birth abortions except when a woman's life is endangered.
-- Sylvia Moreno
Emilio M. Garza
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Emilio M. Garza, 57, is a judge for U.S. Court of Appeals for the 5th Circuit and has been on the short list for a Supreme Court nomination before.
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Justice Department officials interviewed Garza in 1991, when he was among a handful of candidates being considered by President George H. W. Bush to succeed Justice Thurgood Marshall. But Garza then had only three years of experience on the federal bench and his views on many issues were unknown. Bush nominated Clarence Thomas instead.
Garza, who will turn 58 in August, would make history as the first Hispanic ever nominated to the high court.
The former Marine captain earned bachelor's and master's degrees from the University of Notre Dame and graduated from the University of Texas School of Law. He practiced law in his native San Antonio for 11 years and served as a state district judge for a year before President Reagan nominated him to the U.S. District Court in 1988. Three years later Bush elevated him to the 5th Circuit.
Since then Garza has developed a reliably conservative judicial record that includes criticism of the Roe V. Wade abortion decision of 1973. In 1997, Garza sided with the majority in upholding a lower court decision that struck down parts of a Louisiana law requiring parents to be notified when a minor child seeks an abortion. In his concurring opinion, however, he expressed doubts about whether Roe v. Wade was well-grounded in the Constitution.
"[I]n the absence of governing constitutional text, I believe that ontological issues such as abortion are more properly decided in the political and legislative arenas," Garza wrote. ". . . . [I]t is unclear to me that the [Supreme] Court itself still believes that abortion is a 'fundamental right' under the Fourteenth Amendment. . . ."
-Christopher Lee
Alberto R. Gonzales
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Attorney General Alberto R. Gonzales, 49, has less time on the bench than the other likely Supreme Court candidates but has one crucial advantage: the close friendship of President Bush.
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Gonzales grew up as the son of impoverished Mexican immigrants and went on to graduate from Harvard University law school. Bush, then the governor of Texas, hired him as his general counsel and later appointed him to the Texas Supreme Court. Bush brought Gonzales to Washington as his White House counsel in 2001.
The Senate narrowly approved Gonzales as attorney general in February after he faced sharp criticism from Democrats over the role he played in approving controversial detention and antiterrorism policies.
Yet legal experts say that the strongest opposition to Gonzales as a Supreme Court candidate would likely come from the right, due primarily to positions he has taken on issues like abortion and affirmative action.
While on the bench in Texas, Gonzales sided with a majority in a 2000 case allowing an unidentified 17-year-old girl to obtain an abortion without notifying her parents, finding that she qualified for an exception to that state's parental notification law. In a concurring opinion, Gonzales said that to side with dissenters in the case would amount to "an unconscionable act of judicial activism."
Gonzales also testified at his attorney general confirmation hearing earlier this year that he recognized the Roe v. Wade decision legalizing abortion as "the law of the land."
Advisors close to the White House have said that Bush likes the idea that Gonzales would be the first Hispanic justice. (Benjamin Nathan Cardozo, a justice in the 1930s, was of Portuguese and Jewish descent.)
-- Dan Eggen
J. Michael Luttig
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J. Michael Luttig, 51, has been a favorite in conservative legal circles for decades, going back to his clerkship for then-Judge Antonin Scalia on the U.S. Court of Appeals for the D.C. Circuit in 1982-83.
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A graduate of Washington and Lee University and the University of Virginia law school, Luttig also clerked for Chief Justice Warren E. Burger in 1983-84, practiced law in the private sector from 1985-1989, and then served in a variety of Justice Department positions during the first Bush administration, where his duties included helping current Justices Clarence Thomas and David H. Souter win Senate confirmation.
President George H.W. Bush appointed him to the Richmond-based U.S. Court of Appeals for the Fourth Circuit in 1991, when Luttig was just 37 years old. Ever since, he has been spoken of as a likely choice for the Supreme Court should a Republican president have a chance to name him. His many supporters on the right, including ex-law clerks sprinkled throughout the Bush administration, think now is Luttig's time.
This has sometimes led him to clash with other members of the 4th Circuit, including fellow conservative J. Harvie Wilkinson, also thought of as a Supreme Court contender. In 2000, he dissented from a ruling by Wilkinson that upheld a Fish and Wildlife Service regulation limiting the killing of endangered wolves on private land. He also disagreed with Wilkinson in 2003, when he wrote a dissenting opinion that supported the Bush administration's position that it could designate and detain "enemy combatants" with little judicial scrutiny.
In 1998, he upheld Virginia's ban on the procedure known as a partial birth abortion -- but agreed to let it be struck down after the Supreme Court struck down a similar Nebraska law in 2000.
-- Charles Lane
Michael W. McConnell
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Michael W. McConnell, 50, has been a judge on the U.S. Court of Appeals for the 10th Circuit, based in Denver, since his appointment by President Bush in 2002.
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Before then, he was mostly a legal academic, having served as a law professor at the University of Chicago from 1985-1996 and subsequently at the University of Utah.
McConnell's good standing with the legal professoriate helped him immeasurably during the confirmation process; more than 300 of his fellow professors, including many liberals, endorsed him for the bench.
An eclectic thinker who served both as a law clerk for the liberal icon Justice William Brennan and as an official in the Reagan administration, McConnell has expressed his opinions on a wide range of subjects, including a Wall Street Journal op-ed in December 2000 in which he expressed doubts about the legal reasoning of the Supreme Court's Bush v. Gore decision.
But his outspoken disagreement with Roe v. Wade has earned him the condemnation of liberal advocacy groups (though at his confirmation hearing he called it "settled law.") Conservatives like his writings favoring government "neutrality" toward religion.
As a judge, McConnell has upheld Congress's power to criminalize the possession of homemade child pornography; in a case soon to be reviewed by the court, he voted to prohibit enforcement of federal anti-drug laws against people who consume hallucinogenic tea as part of a religious ritual.
-- Charles Lane
John G. Roberts
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John G. Roberts, 50, has long been considered one of the Republicans' heavyweights amid the largely Democratic Washington legal establishment. Roberts was appointed to the U.S. Court of Appeals for the D.C. Circuit in 2003 by President George W. Bush. (He was also nominated by the first President Bush, but never received a Senate vote). Previously, he practiced law at D.C.'s Hogan & Hartson from 1986-1989 and 1993-2003. Between 1989 and 1993, he was the Principal Deputy Solicitor General in the first Bush administration, helping formulate the administration's position in Supreme Court cases. During the Reagan administration, he served as an aide to Attorney General William French Smith from 1981-1982 and as a an aide to White House Counsel Fred Fielding from 1982-1986.
With impeccable credentials -- Roberts attended Harvard College and Harvard Law School, clerked for Justice William H. Rehnquist on the Supreme Court and has argued frequently before the court -- the question marks about Roberts have always been ideological. While his Republican party loyalties are undoubted, earning him the opposition of liberal advocacy groups, he is not a "movement conservative," and some on the party's right-wing doubt his commitment to their cause. His paper record is thin: as Deputy Solicitor General in 1990, he argued in favor of a government regulation that banned abortion-related counseling by federally-funded family planning programs. A line in his brief noted the Bush administration's belief that Roe v. Wade should be overruled.
As a judge on the D.C. Circuit, Roberts voted with two colleagues to uphold the arrest and detention of a twelve-year old girl for eating french fries on the Metro train, though his opinion noted that "[n]o one is very happy about the events that led to this litigation." In another case, Roberts wrote a dissenting opinion that suggested Congress might lack the power under the Constitution's Commerce Clause to regulate the treatment of a certain species of wildlife.
-- Charles Lane
Theodore B. Olson
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Theodore B. Olson, 64, is the former Solicitor General and now an attorney in private practice in Washington at the firm Gibson, Dunn & Crutcher.
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He has been with the firm since 1965 except for two forays into government, serving as President Bush's Solicitor General from 2001-2004 and as Assistant Attorney General for the Office of Legal Counsel for three years during President Ronald Reagan's first term.
He argued Bush's case before the Supreme Court that decided the outcome of the disputed 2000 presidential election.
His other cases have included representing Cheryl Hopwood, who argued that affirmative action in admissions at the University of Texas was a violation of the Constitution. In 1996, a federal appeals court agreed with Olson and Hopwood that the university's policy was unconstitutional. That same year, he represented the Virginia Military Institute before the Supreme Court against claims that the school's admissions policy discriminated against women and lost.
Olson was legal counsel to Reagan during the investigation of the Iran-contra affair. And he represented Jonathan Pollard, who was convicted of selling government secrets to Israel, in his failed bid for a reduction of his life sentence.
While President Bill Clinton was in office, Olson railed against the administration in the conservative American Spectator magazine, where he was a contributing writer and a member of its board of directors.
But his passion threatened his confirmation as solicitor general. During hearings, Democrats asked Olson if he played a role in the "Arkansas Project," an attempt by American Spectator to uncover scandals involving President Bill Clinton and his wife, Hillary. Olson said he did not, but a Spectator staff writer, David Brock, told the Judiciary Committee that Olson was directly involved. Olson was confirmed, but not until after an inquiry into charges that his testimony was untruthful.
--Darryl Fears
Larry D. Thompson
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Larry D. Thompson, 59, is a senior vice president and general counsel for PepsiCo.
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He was the deputy Attorney General--the No. 2 person at the Justice Department--for much of President Bush's first term.
During his tenure at Justice, he had daily involvement in the war on terror and headed the corporate crime task force that pursued prosecutions against Enron Corp., Worldcom Inc. and HealthSouth Corp.
He was one of the highest-ranking African Americans in the Bush administration and if appointed to the court, would be the third African American justice.
Thompson is a longtime acquaintance of Justice Thomas and was a member of the legal team that assisted Thomas during his confirmation hearings in 1991.
Around the same time, Thompson angered some civil rights groups when he wrote that certain black leaders "stressed . . . black people as victims" and ignored problems like their "lack of respect for the law, kids having children too soon and fathers who were not taking their responsibility seriously."
He is a graduate of the University of Michigan Law School, served as a U.S. Attorney in Georgia and practiced at the Atlanta firm of King & Spalding.
--Darryl Fears
J. Harvie Wilkinson
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J. Harvie Wilkinson, 61, was appointed to the 4th Circuit by President Reagan in 1984.
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Before his appointment he was the No. 2 official in the Justice Department's Civil Rights Office from 1982-1983.
Unlike most other leading candidates for the court, Wilkinson has not practiced law in the private sector; he has more experience in journalism and teaching.
From 1978-1982, he was the editorial page editor of the Virginian-Pilot in Norfolk, Virginia, and from 1973-1978, he was a professor at the University of Virginia School of Law, where he received his own law degree before moving on to a clerkship for Justice Lewis F. Powell.
His paper trail is, accordingly, immense. He has written not only legal opinions, but also books, speeches and journal articles in which he sketches a self-consciously moderate conservative philosophy. A typical example was a 2003 Virginia Law Review article titled "Why Conservative Jurisprudence is Compassionate."
Powell, an old family friend, is a role model and mentor for Wilkinson, whose own gentle, courtly manners remind some of the late justice's demeanor.
His rulings have included a 1987 opinion striking down a minority set-aside program for city contractors in Richmond and a 1996 opinion upholding the military's "don't ask, don't tell" policy for homosexual service members.
-- Charles Lane |
