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A Look at the Short List to Fill O'Connor Vacancy


President Bush has said he will not nominate a replacement for retiring Supreme Court Justice Sandra Day O'Connor until he returns from the G8 Summit in Scotland. The president returns later today and speculation over who he will nominate will be ramped up a notch. Democrats want consultations with the president before he fills the vacancy. In Washington, everyone is talking about the short list. NPR legal affairs correspondent Nina Totenberg reports on the names of people not on that list.


When word came last week that there would be a Supreme Court retirement, the president, it appears, was just as surprised as everyone else to learn that it wouldn't be Chief Justice Rehnquist who's leaving but Justice Sandra Day O'Connor, the first woman named to the court. According to sources close to the process, that seriously changed the political equation and the names under consideration. Suddenly, two women's names were being prominently mentioned, both judges on the 5th Circuit Court of Appeals, Edith Jones and Edith Brown Clement, two decidedly conservative female judges in their 50s. Also being mentioned in GOP circles are two other controversial women just confirmed as appeals court judges in a deal to preserve the filibuster, Janice Rogers Brown and Priscilla Owen.

But what about other conservative Republican judges, women with long experience on the bench and high reputations? Why aren't they on the list? Some of them are far better known in legal circles than those who are on the list. Deanell Tacha, appointed by President Reagan, is the chief judge of the 10th Circuit Court of Appeals and is highly respected within the community of judges. Rena Raggi, described as a pro-life conservative, was a top federal prosecutor in New York before President Reagan appointed her to the district court. Three years ago, President Bush promoted her to the appeals court.

Julia Gibbons was a legal star at the age 32 when she became the youngest federal judge in the country. Appointed to the district court in Tennessee by President Reagan, she was promoted to the federal appeals court by President Bush three years ago. Also serving on that court, courtesy of this president, is Deborah Cook, a former Ohio State Supreme Court justice with firmly conservative credentials. These are just a few of the conservative women who are apparently not on the short list. And, of course, there are also many conservative male judges, men who, like these women, have earned significant reputations in the world of the law.

According to sources connected with the process, some names have been crossed off as being not conservative enough, but several sources close to the screening acknowledge that the process is as much one of who you know as who you are. Douglas Kmiec, who served in a key legal post in the Reagan administration, now chairs the constitutional law section at Pepperdine Law School.

Mr. DOUGLAS KMIEC (Pepperdine Law School): In the present circumstances, the people on the short list have colleagues from former or the current administration, and those colleagues have engaged in a very sincere word-of-mouth campaign on their behalf. So it is very much a function of being part of the Washington inner circle.

TOTENBERG: And that is not new. Sandra Day O'Connor's name was brought to the attention of the White House in 1981 by two Supreme Court justices. And in 1990, when a Supreme Court vacancy came up during the tenure of the first President Bush, Judge David Souter's name was promoted by two key players, the White House chief of staff, John Sununu, and Senator Warren Rudman. Both men had known Souter for decades in New Hampshire, and Sununu, when he was governor, had named Souter to the state Supreme Court.

Of course, on the current short list, the name most often talked about, Attorney General Alberto Gonzales, is known best not to the White House staff but to the president himself. And that is the ultimate inside track. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.