Analysis: Miers Withdrawal Was Damage Control

Oct. 30, 2005 — -- Now that Harriet Miers's nomination has imploded, all eyes are on President Bush to see who he will nominate to fill Justice Sandra Day O'Connor's Supreme Court seat. A nominee could come as early as Monday and almost certainly will be announced before Bush leaves for South America on Thursday.

Stuart Taylor, legal affairs editor of National Journal, has identified some potential nominations. Here are some people Bush might nominate, according to Taylor:

Judge Michael W. McConnell has been quite vocal about conservative beliefs, such as his desire to see the wall between church and state eroded. In 1998, he wrote an article for The Wall Street Journal entitled "Roe v. Wade at 25; Still Illegitimate." He also authored the brief for the Boy Scouts arguing they had the right to exclude gays.

However, McConnell spoke out against the Supreme Court decision in favor of Bush during the election of 2000, arguing that the state of Florida should have been given more time to settle the matter.

Taylor said McConnell may be the most "confirmable" of the bunch -- and confirmable is what Bush is after -- because McConnell is a law professor and, despite his conservatism, is considered a great legal mind by many liberals.

Judge Samuel Alito Jr., a former federal prosecutor, has strong enough credentials to satisfy and reunite Bush's conservative base, which fractured over the Miers nomination. Alito has earned the nickname "Scalito" for his philosophical similarities to conservative Justice Antonin Scalia.

Alito also has the type of lengthy record that should please many conservatives -- including being the sole dissenter in a case that was attempting to strike down a law requiring married women to consult their husbands before getting an abortion.

Judge Michael Luttig worked in the Justice Dept and the White House Counsel's office under President Reagan. He clerked for the late Chief Justice Warren Berger and, later, Antonin Scalia. If Luttig is nominated, he should know how to prepare for the confirmation hearing -- because he helped Supreme Court justices Clarence Thomas and David Souter prepare for their confirmation hearings.

Luttig's father was viciously killed by a carjacker in 1994, and the killer was given the death sentence, which was later appealed to the Supreme Court. Because of his personal connection to the issue, Luttig's critics say he should recuse himself from all death penalty cases.

When Luttig was judge, he upheld a law allowing partial-birth abortions, which was later overruled by Supreme Court.

Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee, served eight years on the Texas Supreme Court and as the Texas state attorney general. He has been an outspoken proponent of Bush's administration.

Cornyn spearheaded the push to adopt constitutional amendments banning gay marriage and flag-burning and favors school vouchers, prayer in public schools, extending the Bush-initiated tax cuts beyond 2010 and privatizing Social Security. He opposes abortion and partial-birth abortions except when a woman's life is endangered.

Sen. Jon Kyl, R-Ariz., who has been in the Senate since 1994, and serves on the Senate Finance Committee and Judiciary Committee. Before that, he served four terms in the House of Representatives.

If Cornyn or Kyl is nominated, he might face a less-grueling confirmation hearing than other potential nominees. Historically, when senators come before their colleagues during a Congressional confirmation hearing, their fellow senators go a little easier on them.