Uncertainty builds over Bush high court choice

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - With expectation on Capitol Hill building Tuesday over President Bush’s choice to fill the seat of retiring Justice Sandra Day O’Connor, there was some doubt over the woman who early in the day appeared to be the front-running contender, Judge Edith Clement of the Fifth Circuit Court of Appeals.

The president will speak at 9 p.m. ET to nationwide television audience with his nominee by his side.

One key advisor to the Bush administration warned Tuesday afternoon that no one should misjudge Bush’s ability to pull off the unexpected.

“Never underestimate this president's capacity for surprising people,” said Leonard Leo, the powerful and publicity-shy judicial selection guru for the conservative Federalist Society.

Leo huddled Tuesday afternoon with Senate GOP staffers. Asked for his assessment of Clement, Leo had complimentary things to say about her,

“She’s a very good judge. She’s extremely well respected by her colleagues.”

But he warned that reporters should not “get too far out in front” in assuming that she would be the nominee.

Bush loves surprises
Mulling a complete surprise pick, Sen. Trent Lott, R-Miss., said, “I think he (Bush) would love to do that. He might just come completely off the wall and come with (Texas Sen.) John Cornyn or (Fifth Circuit Judge) Rhesa Barksdale.” 

Clement, 57, served as federal district court (trial) judge for ten years before President Bush appointed her to the appeals court in 2001. Prior to that, she practiced law in New Orleans.

Compared to two other women who are rumored to be in the running, Harvard Law Professor Mary Ann Glendon and Fifth Circuit Judge Edith Jones, Clement does not have a record of making outspoken remarks criticizing the Supreme Court’s 1973 Roe v. Wade decision legalizing abortion.

One conservative advocate, Manuel Miranda, a former aide to Majority Leader Bill Frist who is now head of a group called the Third Branch Conference, said right-wing groups are unenthusiastic about Clement because her record as a judge does not give them sufficient assurance that she is a conservative.

“No one in Washington is pushing for her,” Miranda said. “She suffers from the fact that she is not Janice Rogers Brown or Priscilla Owen,” more outspoken and combative conservative appeals court judges recently confirmed by the Senate.

Hope for 'cathartic release'
“There had been some hope there’d be a cathartic release of applause” with the nomination of a renowned, stellar conservative, he said.

With Clement, Miranda said, it would be a case of “people getting behind the president but not necessarily getting behind his nominee.”

But, he added, his conservative groups would support Clement if in fact she turns out to be Bush’s pick.

There is some concern, conservatives feel, that Clement might end up as another David Souter, a nominee with a scant record who was thought to be conservative but turned out to be a liberal.

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