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High Court Prospects Emerging

Clarion-Ledger
November 23, 2004

WASHINGTON - Two of the most conservative judges on what some consider most conservative federal appeals court in the nation have emerged as front-runners for the next opening on the Supreme Court, analysts say.

With Chief Justice William Rehnquist, 80, battling cancer, the Bush administration has intensified its search for conservative Supreme Court candidates who would meet the president's definition of judges "who know the difference between personal opinion and the strict interpretation of the law."

Alberto Gonzales had been a leading candidate - based partly on President Bush's desire to be the first president to put a Hispanic on the court - but Bush has nominated Gonzales to take over the Justice Department.

With Gonzales at least temporarily out of contention, nearly a dozen other possible candidates have emerged. Two judges on the Richmond, Va.-based 4th U.S. Circuit Court of Appeals - Harvie Wilkinson and Michael Luttig - top the list.

Wilkinson's conservatism and reliability - he nearly always sides with the administration's position on cases - has made him a favorite with the White House, said George Washington University law professor Jonathan Turley.

"If you look across the country, you will not find anyone to the right of Harvie Wilkinson," Turley said. He also said the 4th Circuit Court of Appeals is considered the most conservative federal appeals court in the nation.

Wilkinson may be even more conservative than Rehnquist or any other Supreme Court justice. The court has overturned a few of Wilkinson's decisions, including his ruling that Yaser Esam Hamdi and others considered "enemy combatants" by the federal government in the war on terror had no rights to challenge their detentions before a judge or some other neutral party.

Wilkinson, 60, would say only that he hopes Rehnquist will overcome his thyroid cancer.

"I love the man because he has been kind to me since I was a law clerk," Wilkinson said.

Wilkinson was a clerk for former Supreme Court Justice Lewis F. Powell. He also once ran unsuccessfully for a U.S. House seat in Virginia, taught at the University of Virginia Law School and worked as the editorial page editor of The Virginian-Pilot newspaper in Norfolk, Va.

Sean Rushton, executive director of the conservative Committee for
Justice, said Wilkinson has all the qualities Bush is looking for.

"And he has the experience to be put straight into the chief justice's job," Rushton said.

Appointing Wilkinson or someone else to fill Rehnquist's position directly would mean the president would face only one nomination fight with Democrats in the Senate. The alternative would be to promote a sitting Supreme Court justice to fill the chief justice's job, then fill the vacancy that would leave.

If the president decides he wants someone younger to fill the first vacancy on the Supreme Court, the Texas-born Luttig, 50, may get the nod, Rushton said. Luttig is considered just as conservative as Wilkinson but is more of an activist.

Others under consideration include:

  • Judge John Roberts, 49, a former Rehnquist clerk who was appointed by Bush to the District of Columbia Court of Appeals.
  • Theodore Olson, 64, Bush's former solicitor general who represented the president in the court disputes over the 2000 Florida vote and whose wife was killed in the 9-11 attacks.
  • Janice Rogers Brown, 55, the first black woman to serve on California's Supreme Court.
  • Emilio Garza, 57, a Texan who sits on the 5th U.S. Circuit Court of Appeals and has urged the Roe v. Wade decision granting abortion rights be overturned.
  • Jon Kyl, 62, a Republican senator from Arizona who sits on the Senate Judiciary Committee. As a member of Congress, Kyl could be spared the partisan confirmation battle other conservative Supreme Court nominees would face.

    Any new Supreme Court appointee would play a role in deciding issues that have left the court narrowly divided, including abortion rights, privacy rights, same-sex marriage and affirmative action.

    The abortion rights lobby, civil rights organizations and other groups are expected to launch a campaign to try to stop Senate confirmation of another conservative to the Supreme Court, now divided 5-4 along ideological lines.

    Rushton said a fight over who replaces Rehnquist isn't likely to be intense because it will be seen as one conservative replacing another and not as a move to push the court further to the right.

    But Hilary Shelton, executive director of the Washington office of the National Association for the Advancement of Colored People, disputed that.

    Every person considered for the court "should go through an arduous and stringent process," she said. "No one should get a bye."

    Bush's legacy could rest on his Supreme Court choices. He may be able replace up to four justices with the possible retirements of Rehnquist, Sandra Day O'Connor, 74, John Paul Stevens, 84, and, somewhat less likely, Ruth Bader Ginsburg, 71.

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