After diverting John G. Roberts to the chief justice spot and accepting the withdrawal of Harriet Miers, George W. Bush now gets his third shot at naming somebody to replace the retiring — but not yet retired — Sandra Day O’Connor.
Who’s on the shortlist this time?
Having used a dispute over White House documents as an excuse for dumping Miers, Bush can’t very well turn now to Alberto Gonzales, whose nomination would pose precisely the same document issue that Miers’ did. And having, in reality, lost the Miers nomination to opposition from the right, Bush can’t really be thinking about naming some kind of centrist, political-consensus nominee this time around. What the president needs is a well-respected conservative who comes with plausibly deniable clues of antiabortion views and a record of accomplishment sufficient to counter any charges of cronyism.
What the president needs is another John Roberts.
But with Roberts already spoken for, our money is on tried-and-true conservative judges like J. Michael Luttig or J. Harvie Wilkinson. Neither is a woman — astute observers will note that Bush’s first nominee for O’Connor’s seat wasn’t, either — but neither presents the problems that the Miers nomination posed. Luttig and Wilkinson are beloved by conservatives, and there’s no question about their judicial accomplishments, their intellectual capabilities or their independence from the president himself. If Bush is looking for a bigger splash — and if the Valerie Plame case continues to dominate the news, he will be — watch out for Larry Thompson, who was, as Bush’s deputy attorney general, the highest-ranking African-American law enforcement officer in the administration.
What about Priscilla Owen and Janice Rogers Brown? They would certainly satisfy the right. But the Senate just went through a bruising fight over their nominations to the federal appeals court, and it’s not clear that Bush has the political capital to force either of them through a second time around. With Bush so weak, the John McCains of the world will have even less incentive than usual to do the president’s heavy lifting. And while the left didn’t kill Miers’ nomination — it didn’t have to — Senate Minority Leader Harry Reid warned Bush before he nominated Miers that Democrats wouldn’t take kindly to the nomination of someone they’ve fought before. How about Edith Clement? Sources close to the White House fronted her name the first time Bush was faced with the O’Connor vacancy, apparently as a bluff to throw reporters — and Democrats — off the scent of John Roberts. She could be back in the hunt this time around, although her abortion views might not be clear enough for the forces that derailed the Miers nomination.
And then there’s the question of when. Back in July, Bush accelerated his announcement of Roberts’ nomination when the news of Karl Rove’s involvement in the outing of Valerie Plame became too much for the White House to bear. He announced Miers’ withdrawal today as Washington waits on tenterhooks for word of indictments. The president said this morning that he’ll announce a new nominee in a “timely manner.” Translation: I’ll tell you the next time I need something else to talk about.