Possible Supreme Court Nominees: Who's Next

A noted court watcher points to three possible-or at least confirmable-high-court nominees.

Predictions about Supreme Court appointments are about as reliable as predictions about who will win the manual recount in

a presidential election: They tend to be based on no empirical evidence at all. But although it's hard to say whom President George W. Bush might nominate to the Court when the next vacancy occurs (Justices William Rehnquist, John Paul Stevens, and Sandra Day O'Connor have all been subjects of retirement rumors), it's less hard to say who might be Borked by the Democratic Senate. Since taking political control, Democrats on the Senate Judiciary Committee have made it clear that no extreme conservative nominees need apply. Here, a look at three moderate conservatives who, regardless of their odds of being appointed to the Court, would seem to stand a reasonable chance of being confirmed.

Alberto R. Gonzales
Counsel to the president, age 45

As a newly elected governor of Texas, Bush appointed Gonzales to be his legal counsel in 1995, and the former partner in Houston's Vinson & Elkins soon won Bush's confidence for his loyalty and discretion. He helped get Bush out of jury duty in a 1996 drunk driving case, sparing him (for a time) the need to disclose his own drunk driving arrest two decades earlier. In 1997, Bush appointed Gonzales secretary of state. In that role, Gonzales advised Bush on high-profile capital cases, such as the execution of Karla Faye Tucker. The following year, Bush named Gonzales to the Texas Supreme Court.

Gonzales's opinions as a state court judge are sufficiently opaque to give both liberal and conservative interest groups cause for unease but are unlikely to stir outright opposition. The Texas court handles mostly civil cases, and Gonzales was considered a pro-business middle-of-the-roader. In a prominent abortion case, however, he showed a willingness to separate his personal views from his judicial conclusions. In June 2000, he joined a majority of the Texas Supreme Court in holding that a 17-year-old was "sufficiently well informed" to have an abortion without notifying her parents. To construe the judicial bypass provision narrowly, Gonzales insisted, would be to thwart the intent of the legislature.

In addition to his history with Bush and his canny position on abortion, Gonzales has an appealing personal story that, together with his status as the first Hispanic nominee to the Court, might make him a formidable candidate. The son of Mexican parents who met in the United States as migrant workers, he was raised in a two-bedroom house and was the only one of eight siblings to graduate from college. An Air Force veteran and graduate of Rice University and Harvard Law School, Gonzales is married and has three children. Although conservatives are wary of his moderate record on abortion, he has shored up his credentials with the right by appointing Scalia and Thomas clerks to the White House counsel's office and by spearheading the Bush administration's effort to limit the role of the American Bar Association in screening judicial nominees.

Harvie Wilkinson III
Chief Judge, U.S. Court of Appeals for the Fourth Circuit, age 58

A former law professor and newspaper editor in Virginia, Wilkinson is considered a reliable conservative but is respected by moderates for his measured opinions involving federal-ism and states' rights.

As an appellate judge, Wilkinson has distinguished himself from other conservatives by reflecting openly, yet thoughtfully, on the dangers of what he candidly calls "contemporary judicial activism." In one 1999 case, Wilkinson argued that the activist decisions of the current era are less partisan than those of the early twentieth century, because they "display no pattern of favoritism" toward a particular constituency. But at the same time, he called those decisions "unfavorable to a variety of interests" in their efforts to enforce basic principles of federalism. Looking to the future, Wilkinson added that "if modern activism accelerates to a gallop"-leading to a "wholesale invalidation of environmental, civil rights, and business regulation"-then the new judicial activists would be perceived as no less partisan than their predecessors.

Wilkinson's willingness to acknowledge the dangers of current judicial activism set him apart from his more conservative colleagues on the Fourth Circuit Court of Appeals, such as J. Michael Luttig, who might have more trouble getting past a Democratic Senate. Wilkinson's debate with Luttig came to a head in a case decided last year, in which Wilkinson, writing for the majority over a vigorous dissent from Luttig, upheld an application of the Endangered Species Act that prevented landowners from killing red wolves on private property. Luttig's willingness to enforce more aggressive limitations on federal power, Wilkinson warned, might "place in peril the entire federal regulatory scheme for wildlife and natural resource conservation."

A courtly and gracious man, Wilkinson has written several fine books on topics ranging from school desegregation to the dangers of multiculturalism in America. Whether or not senators agree with Wilkinson's jurisprudential conclusions, it would be hard for them not to respect the candor and seriousness he brings to questions about the proper role of the courts in a democracy.

Michael McConnell
Law professor, University of Utah and nominee to the U.S. Court Of Appeals for the Tenth Circuit, age 46

At press time, it wasn't yet known whether Senate Democrats will confirm McConnell as a federal appellate judge. But if there is any justice in U.S. confirmation politics, McConnell will be approved with enthusiasm.

McConnell is one of the most respected conservative legal scholars in the country, and the broad support he enjoys among liberal and conservative academics makes him a natural candidate for the Supreme Court. More than 300 law professors signed a letter to Judiciary Committee chairman Patrick Leahy endorsing McConnell's nomination to the appellate court. The signatories included distinguished liberals such as Akhil Amar of Yale and Cass Sunstein of the University of Chicago, as well as deans from the law schools at Yale, Harvard, and Stanford. McConnell "exhibits respect, gentleness, concern, rigor, integrity, a willingness to listen and to consider, and an abiding commitment to fairness and the rule of law," declared the scholars, many of them Democrats who voted for Al Gore.

McConnell's ability to attract such impressive bipartisan support is a tribute not only to the integrity of his scholarship but also to his genuinely restrained view of judicial power. More than anyone else in the country, McConnell is responsible for persuading the Supreme Court to abandon the extreme religious separationism of the '70s, in which public schools were allowed to let other student organizations-but not religious ones-meet on school grounds. In the '80s and '90s, partly influenced by McConnell's arguments, the Court instead adopted a vision of religious neutrality, which holds that the state must provide equal, but not special, access for religious groups.

But while McConnell supports religious neutrality, he vigorously opposes religious supremacism. Unlike Scalia, Rehnquist, and Thomas, McConnell insisted that graduation prayers in public schools are unconstitutional. Scalia has called McConnell "the most prominent scholarly critic" of Scalia's own, more restrictive view of the religious liberty guarantees in the First Amendment. The real reason Senate Democrats should embrace McConnell as the model of a principled conservative Supreme Court nominee is because of his deferential view of Congress's power to define illegal discrimination. In defending the constitutionality of the Religious Freedom Restoration Act, which the Supreme Court struck down by a 6-3 vote in 1997, McConnell defended Congress's right to define discrimination more expansively than the Court. McConnell's scholarship on the history of reconstruction has demonstrated that Congress-not the Court-is the branch of government that the framers of the Fourteenth Amendment expected to take the lead in defining and protecting civil rights.

The five conservatives on the Rehnquist Court have taken a different view, insisting that they have the primary power to decide what sort of discrimination violates the Constitution. And McConnell proved his independence by criticizing the Court's refusal to order a manual recount in Bush v. Gore. By nominating a scholar like McConnell, Bush could bolster the Republicans' increasingly embattled claim that they are the party of judicial restraint.

Jeffrey Rosen is the legal affairs editor of The New Republic and an associate professor at George Washington University law school.