Bush has an almost mystical faith in his ability to take the measure of people by looking them in the eye. Within the next few months, he may be measuring some candidates for a long black robe. It is almost certain that by the end of June, when the Supreme Court adjourns for summer recess, at least one Justice will have announced his or her retirement. Chief Justice William H. Rehnquist, 79, and Justice Sandra Day O'Connor, 73, have expressed a desire to leave. Rehnquist has serious back trouble, and O'Connor would like to return to Arizona with her husband. Both want a Republican President to name their replacement, and they know that retiring in 2004, an election year, would provoke a confirmation storm that could keep the court in limbo for months. Then there's the wild card, John Paul Stevens, 83, a liberal who is likely to stay but is the court's oldest member.
Among the many names floated for the post, no candidate has the President's trust like Gonzales. But the irony is that Bush may have a harder time selling his first choice to his allies than to his antagonists. Democrats, who are locked in a pitched battle with the White House over lower-court nominations, would find it tough to block the first Hispanic nominee to the high court, who has a short and unrevealing record on the bench. They might give him a hard time as payback for his treatment of them while he was White House counsel, but a rejection would play badly with Hispanic voters, whom the Democrats are eager to court.
For conservative Republicans, however, Gonzales is not even on the top10 list. They crave a Justice who is strict and outspoken on core conservative issues, namely abortion and affirmative action, and for them Gonzales is too much of a cipher, perhaps too moderate. "To Bush's core constituency," says Phyllis Schlafly, president of the conservative action group the Eagle Forum, "the appointment to the Supreme Court ranks as the No. 1 issue that they care about. Bush went through the campaign saying his favorite Justices were [Antonin] Scalia and [Clarence] Thomas. We are not going to put up with another [David] Souter." Bush the elder's first Supreme Court pick was Souter, and the fact that he has turned out to be a more liberal Justice than anyone expected deeply upsets conservatives.
The fuss may seem a little curious, given that Bush's nominations to the lower courts have been so solidly planted on the right. In fact, some skeptical conservatives believe that Bush has been true blue on the lower courts in order to pave the way for nominating the more moderate Gonzales. And perhaps to burnish his conservative credentials, Gonzales has helped select and then sell these judicial nominees. He has personally met nearly all the candidates for district and appellate seats and says they are never asked their opinions on any hot-button issues.
Overall, 124 of Bush's judicial nominations have been approved, and the judiciary has its lowest vacancy rate in 13 years. But those numbers belie the intensity of the struggle over the White House selections. Senate Democrats have in recent months filibustered two nominees for appellate-court seats: Priscilla Owen, who is fiercely antiabortion, and Miguel Estrada, who has given Senators too little information about how or what he thinks. Republicans are irate and are considering trying to bar filibusters of judicial nominations.
Despite the laurels Bush wins from his base for seeding the lower courts with judges it considers ideologically correct, the Supreme Court pick is seen in a different league. "It doesn't do any good to pick good lower-court guys and throw the Supreme Court" to a moderate, says conservative activist Grover Norquist. The Supreme Court is the Holy Grail for the right and not to be bargained or traded away. The firmness of conservatives on the high court casts some doubt on one option that White House strategists are considering: elevating Scalia to Chief Justice if Rehnquist leaves, thereby earning enough credit with the right to put Gonzales in the vacancy.