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On Law: To reach the heights

By MICHAEL KIRKLAND, UPI Legal Affairs Corresondent

WASHINGTON, May 23 (UPI) -- If President George W. Bush gets the chance this summer to fill vacancies at the Supreme Court, where will he turn?

The White House is keeping its usual well-disciplined silence, but a short list of potential "papabile" is generating the required amount of buzz.

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The Supreme Court to some extent resembles the Vatican curia. Though the justices wear black instead of red, they sit like a clutch of cardinals up in their marble nest on Capitol Hill. No one elected them. No can vote them out unless the Senate decides to impeach them for lack of "good behavior."

They can serve for life, and in many cases try to fine-tune the conduct of government and the public alike.

Once approved and confirmed by the Senate, a justice can regard the president and other politicians as mere participants in the passing parade.

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Elected officials come and go. Supreme Court justices stay for decades, growing powerful and secretive behind the great bench with antique ceramic spittoons at their feet.

When the nine justices rise from their bench to recess in late June or early July -- assuming there's no special summer session for hearing the appeal of a lower-court ruling that struck down the core provisions of the ban on unregulated "soft" money in federal elections -- Bush will be facing one of three situations.

First, all nine of the justices just might stay on. That scenario is entirely possible. In Washington, speculation by one journalist is taken up by others, then repeated in a widening circle until the speculation hardens into a certainty.

However, my gut and 10 years of reporting from the court tell me that the odds of no one leaving at the end of this term are less than even money.

Second, at least one of the justices will have announced his or her retirement. The betting on Capitol Hill is that it would be Justice Sandra Day O'Connor, 74.

Third, and most intriguing, is that Chief Justice William Rehnquist, 78, also will step down at roughly the same time as O'Connor. If so, they may make their announcements in separate weeks to avoid stepping on each other's toes.

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The third situation would give Bush an almost unprecedented opportunity to shape the high court in his own image, though Supreme Court justices are notorious for biting the hand that nominated them.

Assuming O'Connor and Rehnquist step down, and Bush is re-elected, and looking at the ages of those who remain on the court, the president might get a chance to name about four justices over the course of his two terms.

That would mean the chance to pick more high court nominees than any chief executive since President Franklin D. Roosevelt, who named eight justices.

But enough speculation on Bush's influence. Let's speculate instead on the short list.

A name that pops up constantly as a possible nominee is U.S. Circuit Judge J. Michael Luttig.

Luttig was appointed to a newly created seat on the U.S. Court of Appeals for the 4th U.S. Circuit by Bush's father in 1991. The 4th Circuit appellate court, headquartered in Richmond, Va., is considered one of the most conservative of the federal appeals courts in the United States.

The judge is known to support state restrictions on abortion, and Virginia officials have sought him out to restore one of those restrictions when it was struck down by a federal judge.

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Moreover, the 4th Circuit court was the judicial body that decided Congress had the right to overrule Miranda vs. Arizona, the 1966 Supreme Court decision that recognized a prisoner's right to remain silent and the right to have a lawyer present during police questioning (the Supreme Court overruled the appeals court by a vote of 7-2, with the conservative Rehnquist writing the majority opinion).

Luttig also has a special connection to victims of crime. His father was murdered in the driveway of his Tyler, Texas, home in 1994 by a group of carjackers that tried, but failed, to also kill his mother. The main perpetrator, Napoleon Beazley, was 17 at the time of the crime, but was executed last spring when the Supreme Court refused to grant him a stay.

If named by Bush, Luttig would be expected to rule along the lines of Justices Antonin Scalia and Clarence Thomas, enlarging the strength of the court's hard conservative bloc.

Another name that keeps cropping up is that of White House counsel Al Gonzales.

After serving as Bush's general counsel when the president was Texas governor, and as Texas secretary of state, Gonzales was appointed by Bush to the Texas Supreme Court. He left the state court to serve Bush in Washington.

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Gonzales has several very important factors in his favor.

He is the right age -- 48 -- to have a lasting impact on the Supreme Court of the United States. He is a personal friend of the president's, and enjoys Bush's trust. He comes from an impoverished background and pretty much pulled himself up by his own bootstraps. Most importantly, he would be the first Hispanic in U.S. history to be appointed to the Supreme Court -- an important first for Bush or any president courting the Hispanic vote.

There are also several factors working against him.

As a Texas justice, Gonzales supported a minor trying to get judicial approval for an abortion without telling her parents. Gonzales found himself bumping heads with fellow state Justice Priscilla Owen, who insisted the girl was not mature enough to win judicial approval. Owen since has been nominated by Bush to a federal appeals court, but Democrats in the Senate are filibustering the nomination.

Gonzales also helped modify a Justice Department brief in the University of Michigan affirmative action case, supporting racial diversity while rejecting racial quotas. The Supreme Court is expected to rule in the case, deciding whether affirmative action is an unconstitutional government use of race, sometime over the next month and a half.

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His intervention in the case deeply angered this town's hard-shell conservatives, who are not known for letting a grudge die an easy death.

His nomination to the Supreme Court would be a signal that Bush is seeking a moderate course and some kind of detente with Senate Democrats, who though in the minority have the power to filibuster his choice into infinity.

Keep an eye also on U.S. Circuit Judge Emilio M. Garza, who serves on the U.S. Court of Appeals for the 5th Circuit.

Headquartered in New Orleans, the 5th Circuit appeals court is almost as conservative as the 4th Circuit's.

Garza is from Texas, is Hispanic and at 55 still well within the range of the "younger" Supreme Court choices.

He was appointed to the U.S. District Court in Texas by President Ronald Reagan; President George H.W. Bush raised him to the appeals court.

A Notre Dame graduate and Vietnam-era Marine Corps captain, Garza would make an appealing nominee before the Senate Judiciary Committee.

However, there might be nagging questions over his nomination from the deeply conservative core of the Republican Party.

Garza has attacked the expert testimony of prosecution psychiatrists who determine the "future dangerousness" of a capital defendant before a jury sentences the defendant to death.

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The judge calls such testimony unreliable, and he has criticized the 1983 Supreme Court ruling in Barefoot vs. Estelle which supports expert psychiatric testimony.

Returning to Richmond and the 4th Circuit, the name of Chief Circuit Judge James Harvie Wilkinson cannot be ignored.

Some in the Washington legal community consider him a dark horse who can nevertheless surge to the head of the pack.

What if Rehnquist leaves and Bush decides to replace him from someone already on the Supreme Court?

What about the conservatives' darling, Scalia? Not much of a chance. He's got the liveliest intellect on the high court, but Scalia's judicial philosophy is truly retro. He deeply believes that legislatures have the right to legislate morality for the public good. He would fight to the last breath to reverse Miranda and Roe vs. Wade.

I sincerely doubt that Bush is looking for that kind of trouble.

Which leaves us with my current favorite -- Justice Anthony Kennedy.

Kennedy supports Roe vs. Wade, and its progeny, including 1992's Planned Parenthood vs. Casey. But he redeemed himself in conservative eyes by voting with the minority in 2000's Stenberg vs. Carhart, when a 5-4 Supreme Court majority struck down Nebraska's ban on "partial-birth abortion."

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Critics called the ban a thinly disguised attempt to end all abortions, but Kennedy specifically rejected that argument.

Kennedy, 67, would be tricky for the conservatives to support for chief justice. He has shown consistent sympathy for the rights of gays and lesbians, and can be blistering in his defense of what he believes are core constitutional values.

But he votes with the conservative bloc more often than not, and quite often is in the majority, including the 5-4 majority in Bush vs. Gore.

Finally, Kennedy plainly wants the job.

And he's been smiling a lot lately.

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