Bush focusing on two for court, sources say

WASHINGTON – Rebounding from the failed nomination of Harriet Miers to the Supreme Court, President Bush is poised to select between two of the nation’s leading conservative federal appeals court judges – both experienced jurists with deep backgrounds in constitutional law – for what promises to be a bruising Senate confirmation battle.

With an announcement expected today or Monday, administration officials have narrowed the focus to Judges Samuel Alito of New Jersey and Michael Luttig of Virginia, sources involved in the process said. Both have sterling legal qualifications and solid conservative credentials, and both would set off an explosive fight with Senate Democrats, who are demanding a more moderate nominee to replace Justice Sandra Day O’Connor.

Sources close to the process cautioned that Bush still could pick someone else, noting that he had wanted to name a woman to replace O’Connor. He had considered Priscilla Owen of Texas, another federal appeals court judge, before tapping Miers, and she remains a distant possibility, administration sources said.

But sources in the administration and others involved in the process – outside the handful in Bush’s tight inner circle who were weighing the selection this weekend at Camp David – said a nominee other than Alito or Luttig would come as a surprise.

“Those are the only two names anyone is aware of,” said a source who has been closely involved in the selection process.

The conservative legal community that ardently opposed Miers’ nomination – and helped force her withdrawal on Thursday – would embrace either judge, although Luttig is more well-known and would win more enthusiastic support.

Luttig also could provoke the most opposition, at least initially, from Democrats who already are threatening to filibuster any nominee they consider too conservative.

The White House is focusing on Alito and Luttig because both men have the judicial experience and intellectual heft Miers’ opponents felt she lacked for the critical O’Connor vacancy. Both are so well-versed in constitutional law that they could deftly handle senators’ questions. Miers did not impress key senators in private meetings and struggled in practice sessions designed to prepare her for confirmation hearings.

Administration officials, caught off-guard by the opposition to Miers, realize they cannot afford another misstep. Both Alito and Luttig would have strong support from Republican senators and prominent conservatives who were lukewarm or outright hostile to the Miers nomination.

Alito, 55, has been on the Philadelphia-based federal appeals court for 15 years; Luttig, 51, has served on the Richmond-based appeals court for 14 years. Both men worked as lawyers in the Reagan and George H.W. Bush administrations. Alito was the U.S. attorney in New Jersey before his appeals court nomination; Luttig had worked in a prominent law firm before joining the government.

“In some ways, they’re a lot alike. They are both brilliant, and they don’t go out of their way to show you that,” said John Nagle, a professor at Notre Dame Law School who knows both men. “They are really personable guys to be around, but in different ways.”

With the Miers nomination, conservatives believed Bush squandered a historic opportunity to nominate a heavyweight whose intellectual force and clear philosophy could help change the direction of the Supreme Court. Conservatives have criticized the court – and O’Connor as its key swing vote – as too liberal on social issues like abortion and affirmative action and too willing to take on policy matters that should be left to elected legislatures.

“If the president decides to go with a noted conservative judge, and you’re looking at someone of the caliber of Sam Alito or Mike Luttig, then you’re talking about people at the top tier of constitutional jurisprudence,” said Jay Sekulow, chief counsel of the American Center for Law and Justice.

Alito and Luttig also have been thoroughly vetted, so a debate on their nominations would focus on their conservative judicial philosophies and views on the law, sources involved in the process said.

Numerous other candidates were either too little-known or inexperienced to energize the base or had personal or potential ethical issues that could give Democrats additional fodder to oppose them, sources said.