Will Bush name a woman to the court?

When the nation's first African-American justice resigned, George H.W. Bush named another African-American to replace him. Will the son follow suit?

Published July 2, 2005 2:53AM (EDT)

When the nation's first African-American Supreme Court justice retired in 1991, George H.W. Bush nominated another African-American to replace him. Now that the nation's first female Supreme Court justice is retiring, will George W. Bush feel compelled to nominate a woman to replace her?

No one -- at least, no one we know -- has the answer to that question just yet. The White House says Bush won't make a public announcement about O'Connor's replacement until after he returns next week from the G8 summit in Scotland. And when Bush does make his announcement, the pressure he'll face to pick a woman is different from that which his father faced when Thurgood Marshall retired. Marshall was not only the first African-American justice; he was, at the time of his retirement, the only one. When O'Connor retires, she'll leave behind one other woman, Ruth Bader Ginsburg, as a representative of the 51 percent of the American public that happens to be female.

But still, there's nothing quite like a motherly visage when it comes time to paper over extremist right-wing views -- a point that's not lost on an administration that's making increasing use of the first lady's womanly charms. So if Bush doesn't decide to curry favor with Hispanic voters by appointing an Alberto Gonzales or an Emilio Garza, perhaps he'll make his pick from the fairer sex.

Who would it be? It's hard to say. There aren't a lot of women on the usual shortlists. The Washington Post offers a list of nine possible O'Connor replacements. Not one is a woman. There are eight names on the New York Times list, and no women there, either. But Bloomberg has a not-so-short list of 10 names, and three of them belong to women: Janice Rogers Brown, Edith Brown Clement and Edith Hollan Jones.

After the protracted confirmation fight that just ended with her confirmation for a seat on the U.S. Court of Appeals, Brown might seem like an unlikely pick. But if Bush is at all like his father, he's likely to see some appeal in nominating a conservative who happens to be both a woman and an African-American. And because Brown's appellate court nomination was allowed to proceed to a floor vote under the nuclear-option-averting compromise struck by the "Gang of 14," the White House could argue that her nomination to the Supreme Court would, by necessity, not amount to the sort of "extraordinary circumstances" that would permit the Democrats to filibuster.

What about the other two female contenders? Both are in their mid-50s, and both serve now on the U.S. Court of Appeals for the Fifth Circuit. Of the two -- or even of the three -- Clement would be the least controversial choice; when Bush nominated her to the Fifth Circuit in 2001, she was confirmed by a vote of 99 to zero. And while groups like People for the American Way are unhappy with some of the opinions she has written, she hasn't issued the sort of hot-button rulings likely to rile a large percentage of the American public.

Jones would be a harder sell. She was named to the Fifth Circuit in 1985 by Ronald Reagan, and she is one of the favorite short-listers of the Christian Legal Society. Why? Because Jones seems awfully interested in revisiting -- and reversing -- Roe vs. Wade. In a 2004 opinion, Jones said that advances in science make Roe's viability-based reasoning obsolete. "Neonatal and medical science ... now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed," Jones wrote. "If courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's 'choice' is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe court knew."

That's not the kind of thing Sandra Day O'Connor would have said. But then, Clarence Thomas is no Thurgood Marshall, either.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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