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MIERS NOMINATION WITHDRAWN

Roberts Seen as a Template to Follow

Bush is urged to seek a conservative with strong credentials, but could go his own way again.

October 28, 2005|David G. Savage and Henry Weinstein | Times Staff Writers

WASHINGTON — When President Bush accepted Harriet E. Miers' withdrawal as a Supreme Court candidate Thursday, the air immediately filled with fresh advice.

Republican lawmakers and conservative activists called on Bush to return to the model of his previous nominee -- new Chief Justice John G. Roberts Jr. -- and choose a conservative judge with stellar credentials and an intellectual bent.

"He has to go strongly for credentials," Republican pollster David Winston said. "Whoever he chooses is someone that everyone has to look at and, while they may disagree ideologically, in terms of credentials is seen as unassailable. Like the guy Bush picked for the Fed," he said, referring to Ben S. Bernanke, a well-received Princeton economist.

Sen. Sam Brownback (R-Kan.) said he hoped "the president puts forward a well-qualified, conservative jurist with a clear legal philosophy, just like he talked about during the campaign."

Bush is seeking a successor for retiring Justice Sandra Day O'Connor, the court's swing vote on abortion and other hotly contested issues.

One name mentioned often Thursday was Judge Michael W. McConnell, 50, a scholarly former law professor whom Bush put on the U.S. Court of Appeals in Denver. He is a favorite of religious conservatives and won the support of more than 200 legal academics, some of them liberals, when he was chosen as a judge.

He is "exceptionally well-qualified" and would be "hard to demonize" because he has a friendly demeanor and an academic manner, said Boston University law professor Randy E. Barnett, a libertarian.

"He is the closest to Roberts" and "definitely would be confirmed," predicted Drake University law professor Dennis Goldford.

Others pointed to Judge Diane Sykes, 48, a former Wisconsin Supreme Court judge who had a tough law-and-order record. She won the support of the state's two Democratic senators when Bush named her to the U.S. Court of Appeals in Chicago.

Judge Alice Batchelder, 61, a veteran conservative judge on the U.S. appeals court in Ohio, is favored by conservative activist Paul M. Weyrich. "She's got an excellent record and is very solid," he said.

Still another favorite of some conservatives close to the White House is Judge Samuel A. Alito Jr., 55, who serves on the U.S. Court of Appeals in Philadelphia.

"If you are looking to repeat the Roberts experience, I think you nominate Sam Alito," said Brad Berenson, a Washington lawyer who served in the White House counsel's office in Bush's first term. "You will have to endure some criticism on race and gender diversity, but that is probably a transient irritant rather than a formidable obstacle to confirmation."

It is not clear whether Bush will see the matter in the same light. He may feel chastened by the beating his Supreme Court nominee took at the hands of his conservative supporters, but he also could be angry at the treatment of Miers, his longtime confidante.

One month ago, Bush faced a similar predicament, and for reasons that are not clear, chose Miers rather than a conservative judge to fill O'Connor's seat.

At the time, White House aides admitted they had no ideal candidate for Bush's second court pick. All of the finalists had an obvious drawback, they said.

If he tried to make history by choosing the first Latino in the person of Atty. Gen. Alberto R. Gonzales, conservatives said they would feel betrayed. They said Gonzales was too moderate -- like O'Connor -- on issues such as abortion and affirmative action.

Democrats and liberal activists promised an all-out war in the Senate if Bush were to choose an outspoken conservative with a clear record that would please the right. First Lady Laura Bush weighed in, saying she would be displeased if the nominee were not a woman.

Bush had a long list of potential conservative nominees, many of them women. They included Judges Priscilla R. Owen, 51, and Edith H. Jones, 56, from Texas; and Janice Rogers Brown, 56, the former California Supreme Court justice who is now on the U.S. appeals court in Washington. Democrats and liberal activists had targeted all three as reactionaries who would prompt a fight in the Senate.

Bush also could have nominated a well-known conservative such as J. Michael Luttig, 51, or J. Harvie Wilkinson, 60, both from Virginia. They too would have faced significant opposition from Democrats.

After a weekend retreat at Camp David, Bush surprised nearly everyone by opting to avoid a fight with the right or the left -- or so he apparently thought. He chose Miers in part because her name had not drawn opposition from any quarter. That was so, however, because no one had considered her a serious candidate when White House aides leaked her name.

Nonetheless, Bush's move at the start of this month cast doubt on whether outside analysts could predict what he would do next.

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