Candidates for the Supreme Court: Judging the Short List

Published 6/26/05

With the anticipated retirement of Chief Justice William Rehnquist, speculation is rife on the possible nominees on President Bush’s short list. Fortunately for Supreme Court handicappers, Bush has only a couple of simple known criteria. First, he wants ideological consistency. Second, he wants longevity. Short of nominating an embryonic stem cell, the White House would prefer a baby boomer with long-term potential. A few candidates have emerged as leading short-listers. For simplicity, each will be rated below based on the gold standard for conservative purity: Karl Rove. On the Rove-o-meter, five Roves represents the purest conservatism while one would represent marginal conservatism.

•Samuel Alito, 3rd Circuit (New Jersey) [5.0 Roves out of 5]

Called “Scalito” for his unyielding ideological bent in the mold of Justice Antonin Scalia.

Pluses: Bright, respected and only 55 years old.

Minuses: Previously reversed by the Supreme Court, including a 5-4 reversal last week in a death penalty case. Alito would also trigger a fierce abortion debate over a past opinion supporting state restrictions.

•Emilio Garza, 5th Circuit (Texas) [5.0 Roves out of 5]

A former district court judge, Garza, 58, is an oft-mentioned short-lister. What he lacks in intellectual fervor, he makes up in ideological purity.

Pluses: A former Marine, Garza has the cherished Texas connection and would give Bush the added legacy item of appointing the court’s first Hispanic.

Minuses: Garza would also ignite the abortion issue in confirmation. Among other controversial decisions, Garza has questioned the legitimacy of Roe v. Wade and called the decision “inimical to the Constitution.”

•Alberto Gonzales, U.S. attorney general [3.5 Roves out of 5]

Ultimate inside track candidate who already served as a Texas Supreme Court justice.

Pluses: A Bush trifecta: Only 49, a Texan, Hispanic.

Minuses: Viewed by conservatives as unreliable on abortion due to rulings against parental notification. Liberals see him as tainted by a memo he signed that appeared to endorse torture. He relied on the empty-suit defense in Senate confirmation hearing: I don’t actually read or write my memos, I only sign them. That may not fly for a lifetime appointment.

•Edith Jones, 5th Circuit (Texas) [5.0 Roves out of 5]

Jones has been a short-lister longer than some of her competitors have been judges.

Pluses: A Texan, woman, 56 and consistently hard-right. You can set your conservative clock by her.

Minuses: A former general counsel for the Texas GOP, she is seen as an activist and has been criticized for her judicial demeanor. Previously reversed by the court, including this month in a death penalty case.

•J. Michael Luttig, 4th Circuit (Virginia) [4.5 Roves out of 5]

A former law clerk to both Scalia (when he was an appellate judge) and former chief justice Warren Burger, Luttig is the darling of the conservative bar.

Pluses: Luttig is only 51 years old — 10 years younger than his colleague J. Harvie Wilkinson of the 4th Circuit. He is smart and originally a Texas native. Bush (who takes particular interest in stories of family hardship) might also be drawn to the fact that Luttig’s father was a murder victim in a 1994 carjacking in Texas.

Minuses: Luttig wrote the decision striking down the 1994 Violence Against Women Act, a decision affirmed by the Supreme Court. He is on the “hit list” for liberals as someone who would restart the “Federalism Revolution,” decrease the rights of criminal defendants and curtail abortion rights.

•Michael McConnell, 10th Circuit (Utah) [4.0 Roves out of 5]

Appointed in 2002, McConnell is a former University of Chicago law professor who would be the perfect play pal for Scalia.

Pluses: McConnell is a respected intellectual, and Bush would like his take on the separation of church and state (he would reduce the separation). At 50, he is also the right age for a legacy appointment.

Minuses: McConnell would put the role of religion at the heart of a confirmation fight. Libertarians fear he would reduce the wall of separation of church and state to little more than a constitutional speed bump.

•James Harvie Wilkinson III, 4th Circuit (Virginia) [5.0 Roves out of 5]

A former Supreme Court clerk to Justice Lewis Powell and former law professor, Wilkinson is given high marks for intellect and demeanor.

Pluses: Wilkinson is a well-liked judge who would bring both ideological brawn and theoretical brains to the job.

Minuses: He is perhaps the most conservative judge on the most conservative circuit in the country. He has been reversed by the Supreme Court, including the recent enemy combatant decision, in which his view of absolute presidential authority was too extreme even for Chief Justice Rehnquist. He is also 61, a tad older than the White House would prefer.


Then there are the blank-slate candidates: young conservative jurists with the advantage of few published opinions to attack. Judge John Roberts (D.C. Circuit) leads in this category, but Judges Diane Sykes (7th Circuit) and Jeffrey Sutton (6th Circuit) are also contenders.

Of course, it is notable that a majority of the current court members were not on the leading lists before their nominations. Thus, if history is a measure, this current short list is guaranteed to have an accuracy at least equal to a purely random selection of names.

Nevertheless, in a city without its own race track, the Supreme Court sweepstakes remains the only game in town.