Swearing-In of Supreme Court Chief Justice John Roberts

Speculation abounded over potential nominations to the

Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. Federal tribunals in the United States, federal court cases, and over Stat ...

President President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university * President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ...

George W. Bush since before his presidency. In the summer of 2005, this speculation became newsworthy due to the announcement of the retirement of

Associate Justice Associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some sta ...

Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...

on July 1. President Bush announced federal appellate judge

John Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including '' Nat ...

as O'Connor's replacement on July 19. On September 5, two days after the death of Chief Justice

William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...

, Bush renominated Roberts as the 17th chief justice of the United States. He was confirmed by the

United States Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and po ...

on September 29, 2005.U.S. Senate Roll Call Votes – Nomination of John Roberts
''senate.gov''. On October 3, Bush nominated White House Counsel Harriet Miers to succeed O'Connor. However, Miers withdrew her nomination on October 27 after facing significant opposition. On October 31, Bush nominated another federal appellate judge,

Samuel Alito Samuel Anthony Alito Jr. ( ; born April 1, 1950) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George W. Bush on October 31, 2005, and has serve ...

, as his new choice to replace O'Connor. Alito was confirmed as the 110th

justice of the Supreme Court The following are lists of justices of several national Supreme Courts: * : List of Justices of the High Court of Australia * : List of justices of the Supreme Court of Canada * : List of justices of the Federal Constitutional Court * : List ...

on January 31, 2006.

Overview

Throughout much of the history of the United States, the

was clearly the least powerful branch of the government, and nominations to that body, although important, were not the source of great political controversy as they are today. Until the death of Chief Justice Rehnquist in 2005, the composition of the Supreme Court had remained unchanged since 1994, the second longest time period without a membership change in U.S. history (the longest having been from 1812 to 1823). Furthermore, the current court has been sharply divided on a number of high-profile issues, including

abortion rights Abortion-rights movements, also referred to as pro-choice movements, advocate for the right to have legal access to induced abortion services including elective abortion. They seek to represent and support women who wish to terminate their pre ...

, affirmative action, the extent of Congressional power under the

Commerce Clause The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...

eminent domain Eminent domain (United States, Philippines), land acquisition (India, Malaysia, Singapore), compulsory purchase/acquisition (Australia, New Zealand, Ireland, United Kingdom), resumption (Hong Kong, Uganda), resumption/compulsory acquisition (Austr ...

gay rights Rights affecting lesbian, gay, bisexual, and transgender (LGBT) people vary greatly by country or jurisdiction—encompassing everything from the legal recognition of same-sex marriage to the death penalty for homosexuality. Notably, , ...

, the separation of church and state under the

Establishment Clause In United States law, the Establishment Clause of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The relevant constitutional text ...

sovereign immunity Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...

, and

states' rights In American political discourse, states' rights are political powers held for the state governments rather than the federal government according to the United States Constitution, reflecting especially the enumerated powers of Congress and the ...

. The number of close votes in cases involving these areas suggests that a change of one or two key justices could completely shift the thinking of the Court on such issues.

Politics

When asked about the kind of justices he would appoint to the Supreme Court, President George W. Bush responded: "I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...

. Judges interpret the Constitution. ... And that's the kind of judge I'm going to put on there." In more detail, Bush in 1999 told reporter Fred Barnes of the conservative magazine ''

The Weekly Standard ''The Weekly Standard'' was an American neoconservative political magazine of news, analysis and commentary, published 48 times per year. Originally edited by founders Bill Kristol and Fred Barnes, the ''Standard'' had been described as a "re ...

'' that he would nominate judges to the court in the mold of

originalist In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...

Justice

Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...

The filibuster

Soon after President Bush's first inauguration in January 2001, many liberal academics became worried that he would begin packing the federal judiciary with

conservative Conservatism is a cultural, social, and political philosophy that seeks to promote and to preserve traditional institutions, practices, and values. The central tenets of conservatism may vary in relation to the culture and civilization in ...

jurists. Yale law professor

Bruce Ackerman Bruce Arnold Ackerman (born August 19, 1943) is an American constitutional law scholar. He is a Sterling Professor at Yale Law School. In 2010, he was named by '' Foreign Policy'' magazine to its list of top global thinkers. Ackerman was also a ...

, writing in the February 2001 edition of ''

The American Prospect ''The American Prospect'' is a daily online and bimonthly print American political and public policy magazine dedicated to American modern liberalism and progressivism. Based in Washington, D.C., ''The American Prospect'' says it "is devoted t ...

'', encouraged the use of the

filibuster A filibuster is a political procedure in which one or more members of a legislative body prolong debate on proposed legislation so as to delay or entirely prevent decision. It is sometimes referred to as "talking a bill to death" or "talking out ...

to stop Bush from placing any nominee on the Supreme Court during his first term. In addition, law professors

Cass Sunstein Cass Robert Sunstein (born September 21, 1954) is an American legal scholar known for his studies of constitutional law, administrative law, environmental law, law and behavioral economics. He is also ''The New York Times'' best-selling author ...

(University of Chicago) and

Laurence Tribe Laurence Henry Tribe (born October 10, 1941) is an American legal scholar who is a University Professor Emeritus at Harvard University. He previously served as the Carl M. Loeb University Professor at Harvard Law School. A constitutional law sc ...

(Harvard), along with

Marcia Greenberger Marcia D. Greenberger is an American women's rights attorney. She received her B.A. with honors and J.D. cum laude from the University of Pennsylvania, and then worked as a lawyer with the Washington, D.C., firm of Caplin and Drysdale. She co-foun ...

of the National Women's Law Center, counseled Senate Democrats in April 2001 "to scrutinize judicial nominees more closely than ever." Specifically, they said, "there was no obligation to confirm someone just because they are scholarly or erudite." On May 9, 2001, President Bush announced his first eleven court of appeals nominees in a special White House ceremony. There was immediate concern expressed by Senate Democrats and liberal groups like the

Alliance for Justice Alliance for Justice (AFJ) is a progressive judicial advocacy group in the United States. Founded in 1979 by former president Nan Aron, AFJ monitors federal judicial appointments. AFJ represents a coalition of 100 politically leftist groups that ...

.No Rush to Judges
''

The Nation ''The Nation'' is an American liberal biweekly magazine that covers political and cultural news, opinion, and analysis. It was founded on July 6, 1865, as a successor to William Lloyd Garrison's '' The Liberator'', an abolitionist newspaper t ...

'', May 17, 2001. Democratic Senator

Chuck Schumer Charles Ellis Schumer ( ; born November 23, 1950) is an American politician serving as Senate Majority Leader since January 20, 2021. A member of the Democratic Party, Schumer is in his fourth Senate term, having held his seat since 1999, an ...

said that the White House was "trying to create the most ideological bench in the history of the nation." From June 2001 to January 2003, when the Senate was controlled by the Democrats, the most conservative appellate nominees were stalled in the

Senate Judiciary Committee The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a standing committee of 22 U.S. senators whose role is to oversee the Department of Justice (DOJ), consider executive and judicial nominations ...

and never given hearings or committee votes. However, after the 2002 mid-term elections in which the Republicans regained control of the Senate by a 51—49 margin, these same nominees began to be moved through the now Republican-controlled Judiciary Committee. With no other way to block confirmation, the Senate Democrats started to filibuster judicial nominees when they came before the full Senate for final consideration. This forced supporters of the nomination to move to invoke

cloture Cloture (, also ), closure or, informally, a guillotine, is a motion or process in parliamentary procedure aimed at bringing debate to a quick end. The cloture procedure originated in the French National Assembly, from which the name is taken. ' ...

, which, if agreed to by a three-fifths

supermajority A supermajority, supra-majority, qualified majority, or special majority is a requirement for a proposal to gain a specified level of support which is greater than the threshold of more than one-half used for a simple majority. Supermajority ru ...

vote, would allow debate to end and force a final vote on confirmation. On February 12, 2003,

Miguel Estrada Miguel Angel Estrada Castañeda (born September 25, 1961) is a Honduran-American attorney who became embroiled in controversy following his 2001 nomination by President George W. Bush to the United States Court of Appeals for the District of Col ...

, a nominee for the

D.C. Circuit The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate cou ...

, became the first court of appeals nominee ever to be filibustered. Later, nine other conservative circuit court nominees were also filibustered. These nine were

Priscilla Owen Priscilla Richman (formerly Priscilla Richman Owen) (born October 4, 1954) is an American lawyer and jurist serving as the chief United States circuit judge of the United States Court of Appeals for the Fifth Circuit. She was previously a justice ...

, Charles W. Pickering,

Carolyn Kuhl Carolyn Barbara Kuhl (born July 24, 1952) is a judge on the Superior Court of California for the County of Los Angeles and a former nominee to the United States Court of Appeals for the Ninth Circuit. After receiving her law degree in 1977 from D ...

David McKeague David William McKeague (born November 5, 1946) is a Senior United States circuit judge of the United States Court of Appeals for the Sixth Circuit. Education and career McKeague received a Bachelor of Arts degree from the University of Mic ...

Henry Saad Henry William Saad (born June 1948, in Detroit, Michigan)Resume
at US Dept of Justice website is a Richard Allen Griffin Richard Allen Griffin (born April 15, 1952) is a United States circuit judge of the United States Court of Appeals for the Sixth Circuit. Previously, he was a judge on the Michigan Court of Appeals. Griffin was first nominated to the United S ...

William H. Pryor Jr. William Holcombe Pryor Jr. (born April 26, 1962) is an American lawyer serving as the chief judge of the United States Court of Appeals for the Eleventh Circuit. He is a former commissioner of the United States Sentencing Commission. Previously, ...

, William Myers III and Janice Rogers Brown. Three of the nominees (Estrada, Pickering and Kuhl) withdrew their nominations before the end of the 108th Congress.

The “nuclear option”

As a result of these ten filibusters, Senate Republicans began to threaten to change the existing Senate rules by using what Senator

Trent Lott Chester Trent Lott Sr. (born October 9, 1941) is an American lawyer, author, and politician. A former United States Senator from Mississippi, Lott served in numerous leadership positions in both the United States House of Representatives and the ...

termed the "nuclear option". This change in rules would eliminate the use of the filibuster to prevent judicial confirmation votes. However, with only a two-vote majority, the Republicans were in a weak position to implement this procedural maneuver. Circumstances changed in 2005, due to the 2004 elections. With President Bush winning re-election and the Republicans increasing their Senate majority to 55—45 for the

109th Congress The 109th United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives, from January 3, 2005 to January 3, 2007, dur ...

, the "nuclear option" became a more viable strategy to ensure confirmation. On May 24, 2005, seven moderate senators of each party, called the

Gang of 14 The Gang of 14 was a bipartisan group of Senators in the 109th United States Congress who successfully, at the time, negotiated a compromise in the spring of 2005 to avoid the deployment of the so-called "nuclear option" by Senate Republican Major ...

, in a deal to avoid the use of the "nuclear option", agreed to drop the filibuster against three of the seven remaining affected court of appeals nominees (Owen, Brown, and Pryor) but not two others (Saad and Myers). In addition, the senators in the group agreed to block future judicial filibusters except in cases involving "extraordinary circumstances". As a direct result of the deal, the two filibustered nominees not mentioned in it (McKeague and Griffin) were confirmed. Despite these agreements, however, some observers noted that the chances were still high that the Democrats would filibuster any of the ten originally filibustered nominees if subsequently nominated to the Supreme Court, especially Owen, Pryor or Brown. There was also speculation that the Democrats would filibuster any Supreme Court nominee who would change the ideological composition of the court. Historically, although there have been several unsuccessful Supreme Court nominations, only one has been defeated because its opponents were able to successfully maintain a filibuster. This occurred in 1968, when Senate supporters of incumbent

Abe Fortas Abraham Fortas (June 19, 1910 – April 5, 1982) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1965 to 1969. Born and raised in Memphis, Tennessee, Fortas graduated from R ...

’ nomination to succeed

Earl Warren Earl Warren (March 19, 1891 – July 9, 1974) was an American attorney, politician, and jurist who served as the 14th Chief Justice of the United States from 1953 to 1969. The Warren Court presided over a major shift in American constitutio ...

as chief justice lost a vote to invoke cloture by a 45—43 vote, prompting President

Lyndon Johnson Lyndon Baines Johnson (; August 27, 1908January 22, 1973), often referred to by his initials LBJ, was an American politician who served as the 36th president of the United States from 1963 to 1969. He had previously served as the 37th vice ...

to withdraw the nomination. When conservative judge

was nominated to succeed conservative Chief Justice

in September 2005, the confirmation process went relatively smoothly with no threat of a filibuster. Four months later, the filibuster conjecture was disproved. When Bush chose another conservative judge,

, to replace moderate Associate Justice

, opponents of Alito could not generate enough votes to prevent cloture from being invoked (72—25) on his nomination. The next day, January 31, 2006, the Senate confirmed the Alito nomination 58—42.

Consultations with the U.S. Senate

As the 2004–2005 term of the Supreme Court ended, there was a flurry of rumors that Rehnquist, who was undergoing treatment for

thyroid cancer Thyroid cancer is cancer that develops from the tissues of the thyroid gland. It is a disease in which cells grow abnormally and have the potential to spread to other parts of the body. Symptoms can include swelling or a lump in the neck. Ca ...

, would soon retire. On June 27, 2005,

Senate Minority Leader The positions of majority leader and minority leader are held by two United States senators and members of the party leadership of the United States Senate. They serve as the chief spokespersons for their respective political parties holding t ...

Harry Reid Harry Mason Reid Jr. (; December 2, 1939 – December 28, 2021) was an American lawyer and politician who served as a United States senator from Nevada from 1987 to 2017. He led the Senate Democratic Caucus from 2005 to 2017 and was the Sena ...

suggested that the next appointment to the Court should come from outside the judiciary. Reid suggested the appointment of one of four Republican Senators, none of whom possessed previous judicial experience:

Mel Martinez Mel, Mels or MEL may refer to: Biology * Mouse erythroleukemia cell line (MEL) * National Herbarium of Victoria, a herbarium with the Index Herbariorum code MEL People * Mel (given name), the abbreviated version of several given names (includin ...

Mike DeWine Richard Michael DeWine (; born January 5, 1947) is an American politician and attorney serving as the 70th and current governor of Ohio. A member of the Republican Party, DeWine began his career as a prosecutor before being elected to the Oh ...

Mike Crapo Michael Dean Crapo ( ; born May 20, 1951) is an American lawyer and politician serving as the senior United States senator from Idaho, a seat he has held since 1999. A member of the Republican Party, Crapo previously served as the U.S. repres ...

and

Lindsey Graham Lindsey Olin Graham (born July 9, 1955) is an American lawyer and politician serving as the senior United States senator from South Carolina, a seat he has held since 2003. A member of the Republican Party, Graham chaired the Senate Committee on ...

.Supreme Court Justice O'Connor retiring
''

NBC News NBC News is the news division of the American broadcast television network NBC. The division operates under NBCUniversal Television and Streaming, a division of NBCUniversal, which is, in turn, a subsidiary of Comcast. The news division's v ...

'', 2005. The list did not include the name of Republican Senator

John Cornyn John Cornyn III ( ; born February 2, 1952) is an American politician and attorney serving as the senior United States senator from Texas, a seat he has held since 2002. A member of the Republican Party, he served as the Senate majority whip for ...

Texas Texas (, ; Spanish: ''Texas'', ''Tejas'') is a state in the South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2020, it is the second-largest U.S. state by ...

, a former justice on the Texas Supreme Court. Reid declined to address the omission.Lopez, Kathryn Jean
Kiss of Death
, ''

National Review ''National Review'' is an American conservative editorial magazine, focusing on news and commentary pieces on political, social, and cultural affairs. The magazine was founded by the author William F. Buckley Jr. in 1955. Its editor-in-chief ...

'', June 28, 2005. Unexpectedly, on July 1, 2005, it was not Rehnquist who announced his retirement, but O'Connor. On July 12, Bush met at the White House with the party leaders and ranking Judiciary Committee members from the two major parties – Republicans

Bill Frist William Harrison Frist (born February 22, 1952) is an American physician, businessman, and politician who served as a United States Senator from Tennessee from 1995 to 2007. A member of the Republican Party, he also served as Senate Majority Lea ...

and

Arlen Specter Arlen Specter (February 12, 1930 – October 14, 2012) was an American lawyer, author and politician who served as a United States Senator from Pennsylvania from 1981 to 2011. Specter was a Democrat from 1951 to 1965, then a Republican fr ...

, and Democrats Reid and

Patrick Leahy Patrick Joseph Leahy (; born March 31, 1940) is an American politician and attorney who is the senior United States senator from Vermont and serves as the president pro tempore of the United States Senate. A member of the Democratic Party, ...

– to discuss the nomination process. During the meeting, the Democrats offered the President the names of three "moderate"

Hispanic The term ''Hispanic'' ( es, hispano) refers to people, cultures, or countries related to Spain, the Spanish language, or Hispanidad. The term commonly applies to countries with a cultural and historical link to Spain and to viceroyalties for ...

federal judges that they could accept:

Sonia Sotomayor Sonia Maria Sotomayor (, ; born June 25, 1954) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 26, 2009, and has served since ...

of the

Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate jur ...

, Edward Prado of the

Fifth Circuit The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a federal court with appellate jurisdiction over the district courts in the following federal judicial districts: * Eastern District of Louisiana * Mi ...

, and

Ricardo Hinojosa Ricardo H. Hinojosa (born January 24, 1950) is a United States district judge of the United States District Court for the Southern District of Texas and served as the Chairman of the United States Sentencing Commission. Education and career Bor ...

, a district court judge from Texas. Reid later told the press he was disappointed that the President had not chosen to discuss his own choice of possible candidates with the Democrats. In the conservative magazine ''

'', the three candidates suggested by the Democrats were quickly dismissed as being offered in bad faith because they were too liberal for a conservative president to seriously consider.Lott, John R. Jr, and Jones, Sonya D
Unserious Suggestions
''

'', July 19, 2005. Sotomayor was later nominated to the Supreme Court by President

Barack Obama Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party (United States), Democratic Party, Obama was the first Af ...

(a Democrat) and confirmed as an associate justice in 2009. On the same day as the president's bi-partisan leadership meeting, First Lady

Laura Bush Laura Lane Welch Bush (''née'' Welch; born November 4, 1946) is an American teacher, librarian, memoirist and author who was First Lady of the United States from 2001 to 2009. Bush previously served as First Lady of Texas from 1995 to 2000. ...

stated in a ''

Today Today (archaically to-day) may refer to: * Day of the present, the time that is perceived directly, often called ''now'' * Current era, present * The current calendar date Arts, entertainment, and media Films * ''Today'' (1930 film), a 1930 ...

'' show interview during an official visit to

South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring coun ...

a preference for her husband to nominate a woman to O'Connor's seat. Bush was surprised at his wife's public comments about selecting a replacement for O'Connor, but said he would be open to hearing her advice when she returned from her trip.

John Roberts nomination

On the evening of July 19, 2005, Bush announced his first Supreme Court nominee, choosing John Roberts, a highly regarded former Supreme Court litigator and conservative judge on the D.C. Circuit Court of Appeals to succeed retiring Associate Justice O'Connor. During the day leading up to the announcement, there had been much media speculation that one of either two female judges on the

would be selected: moderate Edith Brown Clement or conservative

Edith Jones Edith Hollan Jones (born April 7, 1949) is a United States circuit judge and the former chief judge of the United States Court of Appeals for the Fifth Circuit. Jones was nominated by President Ronald Reagan on February 27, 1985, to a new seat ...

.Riechmann, Deb
Bush to announce Supreme Court nominee in prime-time TV appearance
, ''

The San Diego Union-Tribune ''The San Diego Union-Tribune'' is a metropolitan daily newspaper published in San Diego, California, that has run since 1868. Its name derives from a 1992 merger between the two major daily newspapers at the time, ''The San Diego Union'' and ...

'', July 19, 2005.Source: Clement Not Bush's Choice for High Court
''

ABC News ABC News is the news division of the American broadcast network ABC. Its flagship program is the daily evening newscast '' ABC World News Tonight with David Muir''; other programs include morning news-talk show '' Good Morning America'', '' ...

'', July 19, 2009. Clement was considered the frontrunner. About an hour before the televised announcement, however, information was leaked to the press concerning the choice of Roberts.Bush Picks Roberts for Supreme Court
, ''

Fox News The Fox News Channel, abbreviated FNC, commonly known as Fox News, and stylized in all caps, is an American multinational conservative cable news television channel based in New York City. It is owned by Fox News Media, which itself is o ...

'', July 20, 2005. On September 3, 2005, Chief Justice Rehnquist died. Three days later, on September 6, Bush officially nominated Roberts to be the next chief justice, and simultaneously withdrew Roberts's then-pending nomination to be an associate justice, once again leaving no nominee to replace O‘Connor. Hearings on the Roberts associate justice nomination, set to begin on September 6, were cancelled, and rescheduled hearings, on the chief justice nomination, began on September 12.

Possible O'Connor replacements

On September 6, Specter encouraged the President to fill O'Connor's position with a woman, saying that the Supreme Court should have a minimum of two female justices.Baker, Peter, and Becker, Jo
Bush Pledges Wide Search for Court Seat
''

The Washington Post ''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large n ...

'', Sept 7, 2005. On September 9, Laura Bush reiterated her previous wish to also see a female nominee. On the Thursday before Roberts' confirmation hearing commenced, one of Reid's aides said that the nomination of several candidates said to be on the president's short list to replace O'Connor—conservative appellate Judges

J. Michael Luttig John Michael Luttig ( ; born June 13, 1954) is an American corporate lawyer and jurist who was a U.S. federal judge on the U.S. Court of Appeals for the Fourth Circuit from 1991 to 2006. Luttig resigned his judgeship in 2006 to become general co ...

Emilio Garza Emilio Miller Garza (born August 1, 1947) is a former United States circuit judge of the United States Court of Appeals for the Fifth Circuit and former United States District Judge of the United States District Court for the Western District o ...

and Edith Jones—would be unacceptable to the Democrats, implying that any of them would be filibustered. Several days later, Specter made it known that he felt that it was too early for Bush to elevate Attorney General

Alberto Gonzales Alberto R. Gonzales (born August 4, 1955) is an American lawyer who served as the 80th United States Attorney General, appointed in February 2005 by President George W. Bush, becoming the highest-ranking Hispanic American in executive governme ...

to the Supreme Court.Specter: Gonzales Not Ready for Supreme Court
, ''Capitol Hill Blue'', Sept 12, 2005. Roberts' confirmation hearing for chief justice was held from Monday, September 12, to Friday, September 16. During the week of the hearing, there was much talk that Priscilla Owen would be the next nominee, but columnist

Robert Novak Robert David Sanders Novak (February 26, 1931 – August 18, 2009) was an American syndicated columnist, journalist, television personality, author, and conservative political commentator. After working for two newspapers before serving in the ...

reported that by Friday, Reid had told Frist that Judge Owen would also be filibustered if chosen. On Wednesday, September 21, Bush had another meeting with Senators Frist, Specter, Reid and Leahy to discuss possible Supreme Court nominations. On the day before, Laura Bush mentioned publicly for the third time that she would like to see a female nominee. At the same time, Reid stated that the nomination of any of the previously filibustered appellate nominees would be viewed by the Democrats as "a poke in the eye with a sharp stick". He restated this position during the meeting with the President when he warned against nominating either Brown or Owen.Kiely, Kathy
Roberts picks up Democratic support in Senate
''

USA Today ''USA Today'' (stylized in all uppercase) is an American daily middle-market newspaper and news broadcasting company. Founded by Al Neuharth on September 15, 1982, the newspaper operates from Gannett's corporate headquarters in Tysons, Virgini ...

'', Sept 21, 2005. Again, Reid and Leahy offered the names of appeals court Judges Sotomayor and Prado along with district court Judge Hinojosa.Judiciary Panel Approves Roberts
, ''

'', Sept 22, 2005. Again, Bush did not offer any names of his own to discuss. On Thursday, September 22, Roberts' nomination was voted out of the Senate Judiciary Committee by a bipartisan vote of 13–5. During a press conference on Monday, September 26, Bush implied that his next nominee would be either a woman or a minority. In making his decision concerning O'Connor's replacement, he said he would keep in mind that, "diversity is one of the strengths of the country". John Roberts was confirmed by the United States Senate on Thursday, September 29, by a vote of 78—22 and was sworn in both privately and publicly later the same day. During the evening of Sunday, October 2, John Fund, a columnist for the ''

Wall Street Journal ''The Wall Street Journal'' is an American business-focused, international daily newspaper based in New York City, with international editions also available in Chinese and Japanese. The ''Journal'', along with its Asian editions, is published ...

'', announced on the radio show of blogger

Matt Drudge Matthew Nathan Drudge (born October 27, 1966) is an American journalist and the creator/editor of the Drudge Report, an American news aggregator. Drudge is also an author and a former radio and television show host. Early life and education Drud ...

that his sources had told him that the nominee would be moderate Hispanic Judge Consuelo M. Callahan of the

Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...

. The website ''ConfirmThem.com'', however, reported on the same evening that the selection had been made in favor of conservative Fourth Circuit Judge Karen J. Williams. On Monday, October 3, President Bush unexpectedly chose little-known

White House Counsel The White House counsel is a senior staff appointee of the president of the United States whose role is to advise the president on all legal issues concerning the president and their administration. The White House counsel also oversees the Of ...

Harriet Miers as O'Connor's replacement.Bush picks White House counsel for Supreme Court
'' CNN'', Oct 4, 2005.

Harriet Miers nomination

There was immediate and intense opposition to Miers’ nomination, primarily from conservative Republicans. Principal complaints included: * That her credentials under objective standards were not sufficient to qualify her for the position. * That her nomination was the result of political

cronyism Cronyism is the spoils system practice of Impartiality, partiality in awarding jobs and other advantages to friends or trusted colleagues, especially in politics and between politicians and supportive organizations. For example, cronyism occurs ...

. Because her legal career did not compare to those of other possible conservative female candidates (like federal appellate judges Edith Jones, Karen J. Williams, Priscilla Owen, and Janice Rogers Brown), many thought that President Bush probably nominated Miers for her personal loyalty to him rather than for her qualifications. * That there was no written record to demonstrate that she was either a

strict constructionist In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law (namely the Constitution). Strict sense of the term ...

in her approach to constitutional interpretation. Some conservatives feared that she would support

abortion Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pre ...

, affirmative action and

if ever confirmed to a seat on the Supreme Court. On the morning of Thursday, October 27, 2005, President Bush "reluctantly" accepted Miers’ request to withdraw her nomination.

Samuel Alito nomination

Bush moved quickly to find an alternative nominee to Miers, a nominee who would have both the credentials that Miers lacked and a conservative judicial philosophy that could be well documented. On the morning of Monday, October 31, Bush announced the nomination of well-known conservative Judge Samuel A. Alito Jr., a fifteen-year veteran of the

Third Circuit Court of Appeals The United States Court of Appeals for the Third Circuit (in case citations, 3d Cir.) is a federal court with appellate jurisdiction over the district courts for the following districts: * District of Delaware * District of New Jersey * Ea ...

. Alito's confirmation hearing was held from Monday, January 9, 2006, to Friday, January 13. On Tuesday, January 24, his nomination was voted out of the Senate Judiciary Committee on a 10—8 party line vote. Debate on the nomination began in the full Senate on Wednesday, January 25. Despite a last minute effort by Democratic Senator

John Kerry John Forbes Kerry (born December 11, 1943) is an American attorney, politician and diplomat who currently serves as the first United States special presidential envoy for climate. A member of the Forbes family and the Democratic Party, he ...

to filibuster, which was joined by, among others, Sens. Barack Obama, Joseph Biden, Hillary Clinton, Charles Schumer, and Harry Reid, a

vote to end debate passed 72–25 on Monday, January 30. On the morning of Tuesday, January 31, Alito was confirmed to the Supreme Court by a vote of 58–42. Justice Alito was sworn in privately later that same day, and publicly sworn in the following day.

Epilogue

At the end of the 109th Congress, the Gang of 14 deal expired. On November 7, 2006, the Democrats retook control in the 110th Congress. Starting in January 2007, they possessed a 51—49 majority in the Senate. As the new Senate majority, the Democrats easily blocked several conservative appellate judicial nominees without resorting to the filibuster. Conservative appellate nominees like

Peter Keisler Peter Douglas Keisler (born October 13, 1960) is an American lawyer whose 2006 nomination by President George W. Bush to the United States Court of Appeals for the District of Columbia Circuit became embroiled in partisan controversy. He is a part ...

Robert J. Conrad Robert James "Bob"Esser, William L. IV"Bob Conrad Sworn in as Western District Federal Judge", ''The Mecklenburg Bar News'', Mecklenburg County Bar, Vol. 32, No. 2, August 2005, pp. 1–2. Conrad Jr. (born May 17, 1958) is a United States federal ...

and Steve A. Matthews were blocked in committee and never given a hearing. If a Supreme Court justice had died or chosen to retire during the

110th Congress The 110th United States Congress was a meeting of the legislative branch of the United States federal government, between January 3, 2007, and January 3, 2009, during the last two years of the Presidency of George W. Bush. It was composed of ...

, it would have been easy for the Democrats to have blocked his proposed replacement in committee, or even by a party-line vote on the Senate floor, if it somehow came to that. As it happened, no Supreme Court justice died or retired during the 110th Congress.

Names frequently mentioned

Following is a list of individuals who were mentioned in various news accounts as the most likely potential nominees for a Supreme Court appointment under Bush:

United States Courts of Appeals

US Court of Appeals and District Court map

* Court of Appeals for the 3rd Circuit **

(born 1950)Possible Miers replacements
''

'', Oct 27, 2005. (nominated and confirmed) * Court of Appeals for the 4th Circuit **

J. Harvie Wilkinson III James Harvie Wilkinson III (born September 29, 1944) is an American jurist who serves as a United States circuit judge on the United States Court of Appeals for the Fourth Circuit. His name has been raised at several junctures in the past as a pos ...

(born 1944) – former chief judge ** Karen J. Williams (1951-2013) – former chief judge **

(born 1954) – general counsel for The Boeing Company, former Fourth Circuit judge * Court of Appeals for the 5th Circuit ** Edith Brown Clement (born 1948) **

Emilio M. Garza Emilio Miller Garza (born August 1, 1947) is a former United States circuit judge of the United States Court of Appeals for the Fifth Circuit and former United States District Judge of the United States District Court for the Western District of ...

(born 1947) **

(born 1949) – former chief judge ** Priscilla R. Owen (born 1954) ** Edward C. Prado (born 1947) **

Jerry Edwin Smith Jerry Edwin Smith (born November 7, 1946) is an American attorney and jurist serving as a United States circuit judge of the United States Court of Appeals for the Fifth Circuit. Early life and education Born on November 7, 1946, in Del Rio, ...

(born 1946) * Court of Appeals for the 6th Circuit **

Alice M. Batchelder Alice M. Moore Batchelder (born August 15, 1944) is an American attorney and jurist. She is currently a senior United States circuit judge of the United States Court of Appeals for the Sixth Circuit. She served as chief judge from 2009 until 20 ...

(born 1944) – former chief judge ** Danny Julian Boggs (born 1944) – former chief judge * Court of Appeals for the 7th Circuit ** Frank Easterbrook (born 1948) – former chief judge **

Diane S. Sykes Diane Schwerm Sykes (née Diane Elizabeth Schwerm; born December 23, 1957) is an American jurist and lawyer who serves as the chief judge of the U.S. Court of Appeals for the Seventh Circuit. She served as a justice of the Wisconsin Supreme Cour ...

(born 1957) Greenburg, Jan Crawford
Women, Minorities Top Bush's Supreme Court Short List
''

'', July 1, 2007. **

Ann Claire Williams Ann Claire Williams (born August 16, 1949) is a retired United States circuit judge of the United States Court of Appeals for the Seventh Circuit and a former United States District Judge of the United States District Court for the Northern Di ...

(born 1949) * Court of Appeals for the 9th Circuit **

Consuelo Callahan Consuelo María Callahan (born June 9, 1950) is a United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Background Consuelo María Callahan was born June 9, 1950 in Palo Alto, California. She was raised in ...

(born 1950) * Court of Appeals for the 10th Circuit **

Michael W. McConnell Michael William McConnell (born May 18, 1955) is an American constitutional law scholar who served as a United States circuit judge of the United States Court of Appeals for the Tenth Circuit from 2002 to 2009. Since 2009, McConnell has been a ...

(born 1955) ** Deanell Reece Tacha (born 1946) – former chief judge * Court of Appeals for the 11th Circuit **

(born 1962) *

Court of Appeals for the D.C. Circuit The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate cou ...

** Janice Rogers Brown (born 1949) **

Brett Kavanaugh Brett Michael Kavanaugh ( ; born February 12, 1965) is an American lawyer and jurist serving as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on July 9, 2018, and has served since O ...

(born 1965) '' (subsequently nominated by Donald Trump and confirmed in 2018)'' **

(born 1955) (nominated and confirmed)

United States District Courts

* Cecilia Altonaga (born 1962) – judge, U.S. District Court for the Southern District of Florida *

(born 1950) – judge, U.S. District Court for the Southern District of Texas *

Loretta Preska Loretta A. Preska (born January 7, 1949) is an American federal judge who is currently a senior U.S. District Judge of the United States District Court for the Southern District of New York. Born in Albany, Preska received law degrees from Fo ...

(born 1949) – judge,

U.S. District Court for the Southern District of New York The United States District Court for the Southern District of New York (in case citations, S.D.N.Y.) is a federal trial court whose geographic jurisdiction encompasses eight counties of New York State. Two of these are in New York City: New Y ...

State Supreme Courts (current and former)

* Raoul G. Cantero III (born 1960) – former

Florida Supreme Court The Supreme Court of Florida is the highest court in the U.S. state of Florida. It consists of seven members: the chief justice and six justices. Six members are chosen from six districts around the state to foster geographic diversity, and one ...

justice *

Maura D. Corrigan Maura D. Corrigan (born June 14, 1948 Corrigan had been mentioned as a George W. Bush Supreme Court candidates, potential nominee to the Supreme Court following the announced retirement of Sandra Day O'Connor and the withdrawal of Harriet Miers ...

(born 1948) – former

Michigan Supreme Court The Michigan Supreme Court is the highest court in the U.S. state of Michigan. It is Michigan's court of last resort and consists of seven justices. The Court is located in the Michigan Hall of Justice at 925 Ottawa Street in Lansing, the sta ...

justice * Rebecca Love Kourlis (born 1952) – former

Colorado Supreme Court The Colorado Supreme Court is the highest court in the U.S. state of Colorado. Located in Denver, the Court consists of a Chief Justice and six Associate Justices. Powers and duties Appellate jurisdiction Discretionary appeals The Court ...

justiceCouch, Mark P
State justice touted as nominee
''

The Denver Post ''The Denver Post'' is a daily newspaper and website published in Denver, Colorado. As of June 2022, it has an average print circulation of 57,265. In 2016, its website received roughly six million monthly unique visitors generating more than 13 ...

'', July 12, 2005.

United States Senators

(born 1952) – Republican senator from

, former Texas Supreme Court justice *

(born 1951) – Republican senator from

Idaho Idaho ( ) is a U.S. state, state in the Pacific Northwest region of the Western United States. To the north, it shares a small portion of the Canada–United States border with the province of British Columbia. It borders the states of Monta ...

(born 1947) – Republican senator from

Ohio Ohio () is a U.S. state, state in the Midwestern United States, Midwestern region of the United States. Of the List of states and territories of the United States, fifty U.S. states, it is the List of U.S. states and territories by area, 34th-l ...

* Orrin Hatch (1934–2022) – Republican senator from

Utah Utah ( , ) is a state in the Mountain West subregion of the Western United States. Utah is a landlocked U.S. state bordered to its east by Colorado, to its northeast by Wyoming, to its north by Idaho, to its south by Arizona, and to its ...

Jon Kyl Jon Llewellyn Kyl ( ; born April 25, 1942) is an American politician and lobbyist who served as a United States Senator for Arizona from 1995 to 2013 and again in 2018. A Republican, he held both of Arizona's Senate seats at different times, s ...

(born 1942) – Republican senator from

Arizona Arizona ( ; nv, Hoozdo Hahoodzo ; ood, Alĭ ṣonak ) is a state in the Southwestern United States. It is the 6th largest and the 14th most populous of the 50 states. Its capital and largest city is Phoenix. Arizona is part of the Fou ...

(born 1946) – Republican senator from

Florida Florida is a state located in the Southeastern region of the United States. Florida is bordered to the west by the Gulf of Mexico, to the northwest by Alabama, to the north by Georgia, to the east by the Bahamas and Atlantic Ocean, and ...

Executive Branch officials

Christopher Cox Charles Christopher Cox (born October 16, 1952) is an American attorney and politician who served as chair of the U.S. Securities and Exchange Commission, a 17-year Republican member of the United States House of Representatives, and member of ...

(born 1952) – former SEC chairman, former U.S. representative from California

Supreme Court litigators

Paul Clement Paul Drew Clement (born June 24, 1966) is an American lawyer who served as U.S. Solicitor General from 2004 to 2008 and is known for his advocacy before the U.S. Supreme Court. He established his own law firm, Clement & Murphy, in 2022 after l ...

(born 1966) – 43rd solicitor general * Miguel A. Estrada (born 1961) – withdrawn nominee for the D.C. Circuit, former assistant solicitor general * Peter D. Keisler (born 1960) – former nominee for the D.C. Circuit, former

assistant attorney general Many of the divisions and offices of the United States Department of Justice are headed by an assistant attorney general. The president of the United States appoints individuals to the position of assistant attorney general with the advice and ...

* Maureen E. Mahoney (born 1955) – former deputy solicitor general *

Theodore Olson Theodore Bevry Olson (born September 11, 1940) is an American lawyer, practicing at the Washington, D.C., office of Gibson, Dunn & Crutcher. Olson served as United States Assistant Attorney General of the Office of Legal Counsel (1981–198 ...

(born 1940) – former solicitor general

Other backgrounds

Viet Dinh Viet D. Dinh ( vi, Đinh Đồng Phụng Việt; born February 22, 1968) is a lawyer and a legal scholar who is Chief Legal and Policy Officer of Fox Corporation and who served as an United States Assistant Attorney General, Assistant Attorney Ge ...

(born 1968) –

Georgetown University Law Center The Georgetown University Law Center (Georgetown Law) is the law school of Georgetown University, a private research university in Washington, D.C. It was established in 1870 and is the largest law school in the United States by enrollment and ...

professor, former

* Mary Ann Glendon (born 1938) – former U.S. ambassador to the Holy See,

Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States. Each c ...

professor, former member of

President's Council on Bioethics The President's Council on Bioethics (PCBE) was a group of individuals appointed by United States President George W. Bush to advise his administration on bioethics. Established on November 28, 2001, by Executive Order 13237, the council was dir ...

* Alberto R. Gonzales (born 1955) – former

attorney general In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...

, former

White House counsel The White House counsel is a senior staff appointee of the president of the United States whose role is to advise the president on all legal issues concerning the president and their administration. The White House counsel also oversees the Of ...

, former Texas Supreme Court justice * Harriet Miers (born 1945) – former

(nomination withdrawn) * Larry D. Thompson (born 1945) – general counsel for

PepsiCo PepsiCo, Inc. is an American multinational food, snack, and beverage corporation headquartered in Harrison, New York, in the hamlet of Purchase. PepsiCo's business encompasses all aspects of the food and beverage market. It oversees the manufa ...