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Bush To Be Firm On Next High Court Nod

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AP
White House aides have developed a strategy for filling a future vacancy on the Supreme Court that calls for nominating an ideological conservative even if it increases the chance that the person would not be confirmed, The Washington Post reports on its Web site, in a story for its Sunday editions.

With at least one retirement on the court this year increasingly viewed as likely, advisers to President Bush see no necessity to try to head off Democratic opposition by offering a moderate nominee without a long paper trail of opinions and academic writings, the Post says, citing administraitn sources.

The officials told the newspaper they are more likely to choose someone inclined to more conservative interpretations of the Constitution and take their chances with the Senate, where Republicans hold a majority of 51 to 49.

"There is no fear of a confirmation fight," the Post quotes a senior administration official as saying. "That doesn't mean that we want to fight for the sake of having a fight, or that we aren't going to choose the fight carefully."

Officials said the more aggressive strategy was driven in part by Mr. Bush's political momentum after November's elections and a growing belief in the West Wing that Democrats plan to fight no matter who is nominated.

But another factor, they told the Post, was the frank opposition among conservative activists to the prospective nomination of White House counsel Alberto Gonzales, who served as a Texas Supreme Court justice and as Mr. Bush's counsel in the Texas governor's office -- and has long been expected to be the president's first choice for the court.

Gonzales is still very much in the running and might well be nominated -- if not at first, then eventually, the officials said. But they said for the first time that they are taking the conservatives' complaints to heart and would not automatically recommend putting him up first.

Although Mr. Bush has pursued a middle course on some issues, this emerging approach to Supreme Court nominations signals the administration's intention to govern largely from the right now that the Senate is back in Republican hands, the Post explains. The strategy is in keeping with the White House's announcement of an economic plan heavy on tax cuts and the renomination of conservative lower court judges previously rejected by Senate Democrats, the newspaper adds.

The Supreme Court strategy also implies that Republican conservatives have gained the upper hand in the internal administration debate over whether the president's political interest lies in rewarding his core supporters or in courting Hispanic voters by naming the first member of that fast-growing voting population to the court, the Post points out.

Conservatives are concerned about Gonzales's views on affirmative action and abortion. The right blames him for the administration's initial hesitation to support a challenge at the Supreme Court to the University of Michigan's race-conscious admissions program. And antiabortion groups dislike an opinion he wrote as a Texas Supreme Court justice supporting a teenager's right to have an abortion without telling her parents, the Post says.

One prominent conservative who is familiar with the White House's deliberations said to the Post that activists are concerned that Gonzales's instincts "may not be that sound."

The conservative leader added: "But there's also a certain amount of resignation that if the president wants him, the president wants him."

Another top conservative activist spoke to the newspaper of "strong, vocal opposition," and said it has been communicated to Bush's senior adviser, Karl Rove.

Several senior officials explained to the Post that the ultimate choice would depend very much on precisely who vacates the court. Officials said Gonzales would be less likely to be nominated if the first member to step down were Chief Justice William Rehnquist, 78. Gonzales is not perceived as being "as rock-solid as the chief is," as one put it to the Post, so his elevation to the court could, in this view, actually move it to the left.

According to the Post, among the right's favorites for the court are J. Harvie Wilkinson, chief judge of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, and J. Michael Luttig, another judge on the same court. Also mentioned are Edith Jones, a judge on the New Orleans-based U.S. Court of Appeals for the 5th Circuit, and Solicitor General Theodore B. Olson. Administration officials said another possibility is Samuel A. Alito Jr., a judge on the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.

But Gonzales might be more acceptable to conservative activists if he were replacing Justice Sandra Day O'Connor, 72, a more moderate, Republican-appointed justice who, unlike Rehnquist, has voted to support abortion rights, the Post explains.

One official said an ideal scenario for the administration and its allies would be for Justice John Paul Stevens, 82, to retire. Though appointed by Republican President Ford, in 1975, Stevens is a consistently liberal voice on the court, so the administration could argue that installing Gonzales in the Stevens seat would be a net gain for the right, the Post says.

If Rehnquist retired, Mr. Bush would have the option of elevating a current member to chief justice while installing a new nominee as associate justice. In that case, officials said to the Post, he would most likely choose from the court's other four Republican appointees, O'Connor, Antonin Scalia, Clarence Thomas or Anthony M. Kennedy.

William Kristol, editor of the Weekly Standard, said the strategy had evolved in part because of the White House's expectations that Democrats will oppose anyone it nominates. "Since you can't duck and dodge, they're going to go for a fighter," he said. "They want someone who will defend himself effectively," he told the Post.

Recalling Mr. Bush's campaign-trail praise for conservatives Scalia and Thomas, some conservative activists have taken to comparing any move by Mr. Bush to nominate a moderate to the court with his father President George H.W. Bush's violation of a campaign pledge not to raise taxes, the Post reports.

Conservatives have also pounded home the message that they expect no repeat of the elder's nomination of David Souter to the court. A little-known "stealth nominee" -- one without a long record or well-known ideology -- when he was named in 1990, Souter has infuriated the right by consistently voting with the court's four-member liberal bloc, the Post points out.

"The rallying cry on the right for 'No more Souters' is really intense," said Clint Bolick, a former Reagan administration Justice Department official. "Conservatives think that they've got an explicit promise to nominate conservative justices," he told the Post.