Let the rumors begin...
Supreme Court pick is between 2 conservatives
By Jan Crawford Greenburg
Originally published October 30, 2005
WASHINGTON // Rebounding from the failed nomination of Harriet Miers to the Supreme Court, President Bush is poised to select between two of the nation's leading conservative federal appeals court judges -- both experienced jurists with deep backgrounds in constitutional law -- for what promises to be a bruising Senate confirmation battle.
With an announcement expected Sunday or Monday, administration officials have narrowed the focus to Judges Samuel Alito of New Jersey and Michael Luttig of Virginia, sources involved in the process said. Both have sterling legal qualifications and solid conservative credentials, and both would set off an explosive fight with Senate Democrats, who are demanding a more moderate nominee to replace Justice Sandra Day O'Connor.
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Sources close to the process cautioned that Bush still could pick someone else, noting that he had wanted to name a woman to replace O'Connor. He had considered Priscilla Owen of Texas, another federal appeals court judge, before tapping Miers, and she remains a distant possibility, administration sources said.
But sources in the administration and others involved in the process -- outside the handful who were weighing the selection this weekend at Camp David -- said a nominee other than Alito or Luttig would come as a surprise.
The conservative legal community that ardently opposed Miers' nomination would embrace either judge, although Luttig is more well-known.
Luttig also could provoke the most opposition, at least initially, from Democrats who already are threatening to filibuster any nominee they consider too conservative.
The White House is focusing on Alito and Luttig because both men have the judicial experience and intellectual heft Miers' opponents felt she lacked for the critical O'Connor vacancy. Both are so well-versed in constitutional law that they could deftly handle senators' questions. Miers, a non-judge, did not impress key senators in private meetings.
Administration officials, caught off-guard by the opposition to Miers, realize they cannot afford another misstep. Both Alito and Luttig would have strong support from Republican senators and prominent conservatives who were lukewarm or outright hostile to the Miers' nomination.
With the Miers nomination, conservatives believed Bush squandered a historic opportunity to nominate a heavyweight whose intellectual force and clear philosophy could help change the direction of the Supreme Court. Conservatives have criticized the court -- and O'Connor as its key swing vote -- as too liberal on social issues like abortion and affirmative action and too willing to take on policy matters that should be left to elected legislatures.
"If the president decides to go with a noted conservative judge, and you're looking at someone of the caliber of Sam Alito or Mike Luttig, then you're talking about people at the top tier of constitutional jurisprudence," said Jay Sekulow, chief counsel of the American Center for Law and Justice.
Alito and Luttig have been thoroughly vetted, so a debate on their nominations would focus on their conservative judicial philosophies and views on the law, sources involved in the process said.
Numerous other candidates, including many of the leading women judges, were either too little-known or inexperienced to energize the base or had personal or potential ethical issues that could give Democrats additional fodder to oppose them, sources said.
"In this climate, and exactly where this process is right now, the person needs to be thoroughly vetted," said one Republican adviser close to the process who asked not to be identified. "You want no sideshows. This needs to be a debate on judicial philosophy and the role of the judge."
Multiple sources said they expected an announcement Sunday afternoon or early Monday. The White House is eager to put the Miers' nomination behind it and shift attention away from the criminal indictment of Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, for obstruction of justice, perjury and making false statements.
By nominating Alito or Luttig, Bush would electrify his supporters who have been in open revolt over the Miers nomination.
"They are widely respected among the bench and bar nationally for being careful jurists, faithful to the Constitution and proponents of judicial restraint," said Wendy Long, chief counsel of the Judicial Confirmation Network, a conservative legal group that did not embrace Miers.
Alito, 55, has been on the Philadelphia-based federal appeals court for 15 years; Luttig, 51, has served on the Richmond-based appeals court for 14 years. Both men worked as lawyers in the Reagan and George H.W. Bush administrations. Alito was the U.S. attorney in New Jersey before his appeals court nomination; Luttig worked in a prominent law firm before joining the government.
"In some ways, they're a lot alike. They are both brilliant, and they don't go out of their way to show you that," said John Nagle, a professor and associate dean at Notre Dame Law School who knows both men.
Alito is more reserved and soft-spoken. He is often is called "Scalito," because his intellect and Italian heritage draw comparisons to Justice Antonin Scalia. But his personality and self-effacing manner are completely different from those of the boisterous Scalia.
Luttig is more outgoing. In some ways, he is more like Scalia, for whom he clerked when Scalia was on the federal appeals court. Like Scalia, his writing style is crisp and clear, and he is willing to confront colleagues when he believes they don't adhere to established law. As a result, he sometimes reaches decisions that cannot be considered conservative.
By nominating either judge, Bush would draw Republicans into a more traditional battle with Democrats, who already have indicated they will oppose both men, primarily because of opinions they have written on abortion regulations. Both judges would be subject to tough scrutiny on whether they would vote to overturn Roe vs. Wade, the landmark Supreme Court decision that said women had a constitutional right to an abortion.
Alito is widely perceived as easier to confirm than Luttig, but on the abortion issue he could be more controversial. He wrote a dissent in a 1991 case that would have upheld a Pennsylvania law requiring women to notify their husbands before obtaining an abortion unless they were worried about their safety or believed the husband was not the baby's father.
Luttig has voted to uphold abortion regulations, including a Virginia parental-notification law. But he also wrote in a 2000 case that a Supreme Court decision upholding a woman's constitutional right to an abortion was "super-stare decisis."
Stare decisis is a legal principle that means "let the decision stand," and it constrains courts from readily overturning precedent.
On other issues, both judges have a well-defined conservative philosophy that courts should take a back seat to legislatures on social issues.
Jan Crawford Greenburg writes for the Chicago Tribune
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