A FIGHT WORTH HAVING:

Expecting a Vacancy, Bush Aides Weigh Supreme Court Contenders (Neil A. Lewis, December 27, 2002, NY Times)

Administration officials say the short list of candidates for Supreme Court seats besides Mr. Gonzales includes Judge Wilkinson, Judge J. Michael Luttig who also sits on the United States Court of Appeals for the Fourth Circuit and Justice Janice Rogers Brown of the California Supreme Court. Justice Brown, a black woman, wrote the majority opinion in 2000 interpreting the state's referendum against affirmative action in a way that delighted conservatives.

Other possibilities, officials say, include Judge Alito, who was a clerk for Justice Scalia and is nicknamed Scalito by some lawyers but who is seen as a far less confrontational figure.

Another candidate is Judge Edith H. Jones of the United States Court of Appeals for the Fifth Circuit in New Orleans who is noted for sharp conservative opinions. Judge Jones was poised to be named by President Bush's father in 1990 when he decided instead to choose David H. Souter. Also mentioned has been Larry D. Thompson, the deputy attorney general, who would give the court two black members.

If Mr. Bush decides to elevate a current justice to the chief's position, the most likely candidates, officials said, would be Justice Scalia or Justice O`Connor because the other Republican-appointed members of the court have assorted liabilities. The two possibilities come with different political dimensions. Justice O`Connor would add to her historical legacy as the court's first woman by becoming the first woman chief justice. But Republicans have, for years, favored younger people as judicial choices so they can remain longer and have greater impact on the bench.

Elevating Justice Scalia would almost certainly entail a confirmation battle, but one in which the White House might be willing to engage.

The AP story on this last week suggested that they'd be reluctant to promote Scalia because the confirmation fight would be so bitter and Democrats would focus on abortion and the 2000 Gore v. Bush case. To the contrary, though he's probably not a great choice for Chief, if Mr. Scalia would be willing to take on the fight, those seem like excellent reasons to nominate him. For one thing, even if he loses he's still on the bench. For another, he's just as smart as Robert Bork, who ran rings around the Bidens and Kennedys last time, but he's also far more combative and presents a more appealing appearance. Let the Democrats turn the nomination into a fight over abortion and you've got them arguing against the Constitution and in favor of an extreme political position. Plus, if they did pursue the presidential election decision, they'd just seem (or prove themselves) to be living in the past.
Posted by Orrin Judd at December 27, 2002 11:04 AM