With Roberts a lock, who comes next?

Bush is talking about the value of diversity. Would a female John Roberts count?

Published September 26, 2005 5:23PM (EDT)

The U.S. Senate won't vote on the confirmation of John G. Roberts until later this week, but it's already clear that Roberts will get more "yes" votes than his predecessor did. William Rehnquist was confirmed as chief justice by a vote of 65-33 in 1986. So far, 12 Democratic senators have said they'll join all 55 Republicans in favor of Roberts' confirmation, giving him 67 votes with 18 Democrats still to come.

So what happens next? Roberts will be confirmed this week -- probably Thursday -- and George W. Bush may name his second Supreme Court pick just as soon as the voting is done. At a press briefing at the Energy Department today, Bush hinted that he will nominate a woman or a minority to replace Sandra Day O'Connor. "I have interviewed people in the past and thought about people from all walks of life," he said. "And I will put the person in to do the job. But I am mindful that diversity is one of the strengths of the country."

If that sounds familiar, it's because it is. On July 13, Bush told reporters that he was considering a woman for O'Connor's seat. Throughout the day on July 19, Washington was abuzz with news that Bush had chosen a woman. And on the evening of July 19, Bush nominated John G. Roberts, who is neither a woman nor a minority, except to the extent that people who still support Bush's performance in office are now in the minority.

Will Bush use his second pick to nominate a woman or a minority or -- gasp! -- a moderate? Don't count on it. Federalist Society executive vice president Leonard Leo, who has been advising the White House on the Roberts confirmation process, tells the Los Angeles Times that the question of diversity is "being overplayed by the media." "I think you should take the president at his word," Leo said, albeit before the president's "word" was "diversity." "He wants a judicial conservative, someone who is extremely smart, has a good temperament and a reverence for the Constitution."

Of course, "reverence for the Constitution" means different things coming out of different mouths. And the list of women frequently mentioned as possible Bush nominees -- among them, Priscilla Owen, Edith Jones and Janice Rogers Brown -- shows that what a Democrat might consider "reverence for the Constitution" isn't automatically attached to that second X chromosome. Perhaps Bush will choose a woman less obviously conservative than an Owen or Jones or Brown; Edith Clement has less of a paper trail, and the Los Angeles Times mentions the possibility of a sort of female John Roberts in Maureen Mahoney, an appellate lawyer at Latham & Watkins. Like Roberts, Mahoney clerked for Rehnquist, worked in the solicitor general's office and has argued numerous cases before the Supreme Court. She may not have the proven track record on abortion, same-sex marriage and other social issues that the religious right and Republican senators like Bill Frist and Sam Brownback say they'll demand, but she may have something better, at least as far as the White House is concerned: an appellate litigator's ability to bob and weave through the tough questions and on to an easy confirmation.

By Tim Grieve

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

MORE FROM Tim Grieve

Related Topics ------------------------------------------

Supreme Court War Room