White House Prepares Short List In Case Of Vacancy

While the White House is not expecting a vacancy to the Supreme Court when they break at the end of June, they are preparing a short list according to ABC News:

The White House is developing a short list of possible Supreme Court nominees so President Bush can move swiftly if a justice retires at the end of June, when the Court breaks for its summer recess, according to sources involved in the selection process.

Bush met with top advisers last month, and they discussed possible nominees if a Supreme Court vacancy occurs.

He told White House Counsel Fred Fielding and other administration lawyers that he wanted to nominate a woman or a minority to the Court, and his legal team has narrowed its focus to a half-dozen contenders, sources said.

We dislike that last part about nominating a woman or a minority, but it is the president's choice. The reason why we dislike the blatant admission is that he seems to be pandering to a specific demographic, i.e., playing politicis with the choice. However, we cannot discount the fact that both Justice Alito and Chief Justice Roberts have been solid textualist jurists, and have not engaged in the sort of activism that many feared they might entertain.

(This was not a worry of ours. We were among those bloggers vetting John Roberts so we knew what he was about. The full list of the blogs involved in the monumental undertaking is here at Generalissimo Duane's site.)

Of course the question on everyone's mind at this point is "Who is the president looking at?" We have three sure-fire nominees that have exhibited outstanding work since being elevated to their respective bench assignments. Janice Rogers Brown (DC Circuit court of Appeals), Priscilla Owen (Fifth Circuit Court), and Edith Clement (Fifth Circuit Court). As some will remember all three of these women were, and still are, on our own short list along with a few other possible nominees. (If President Bush is looking for a minority, Emilio Garza from the Fifth Circuit Court.)

And of course the other question is who would be the next person to step down. Obviously Justice Alito and Chief Justice Roberts are out of the speculation. However, the remaining justices and their ages are listed below:

Antonin Scalia -- 61
Clarence Thomas -- 59
Stephen Breyer -- 69
David Souter -- 68
John Paul Stevens -- 87
Anthony Kennedy -- 61
Ruth Bader Ginsburg -- 74

The obvious choices would either be Justice Stevens or Justice Ginsburg. But the ABC report states that neither of them are even considering retirement. There were some rumblings last year that Justice Souter or Justice Breyer might be mulling over retirement, but they, too, have disavowed any rumors of such a decision.

We should remember that what the White House is doing is normal. With the recess of the high court coming up quickly, there is always the possibility that someone may step down. this is merely the president being pre-emptive and pro-active. He knows it is a possibility, however slim, and he does not wish to make the same mistake his father did with the Souter nomination. (Then, the elder Bush refused to listen to the one person arguing vehemently against sending Souter up. That would be J. Michael Luttig, formerly of the Fourth Circuit Court, who warned the president that Souter was not a constructionist or originalist.)

For thomas and I, this is when the excitement starts to build. The possibility of another nominee coming up warms our hearts. We enjoy the law, especially Con Law, and it is always fun to see the fight that will ensue. If you think there will not be a fight over the next nominee, think again. the Democrats, according to the ABC report, are already warning the president not to send them a conservative, i.e., an originalist.

Both Judge Owen and Judge Clement are more subdued than the mnore vocal Judge Brown. But the fact that all three are originalist jurists could hurt them. We hope that such a fight is not one the president will back down from, and that he will appoint a solid, constitutionally-minded jurist. Though I willa dmit if he does nominate any one of these three women, I do not envy them. They will be facing an openly hostile Judiciary Committee currently chaired by Senator Patrick Leahy. To say the fur will fly is a gross understatement.

This is one of those stories we will be keeping a close eye on.

Marcie