Bush: I'll Look Outside Judiciary

WASHINGTON – President Bush (search) said Wednesday that he would consider nominating a woman or someone with no experience as a judge to replace retiring Justice Sandra Day O'Connor (search).

"We're considering all kinds of people — judges, non-judges," Bush said, adding that he also is open to picking a woman — something that Laura Bush (search) said he hoped he would do.

Talking to reporters following a Cabinet meeting, Bush declined to say when he would announce his decision and said that if he knew when he would begin interviewing individuals he probably wouldn't say.

"We're still consulting with members of the Senate, and I anticipate continued consultations," Bush said.

"But the American people can rest assured that I understand the seriousness of this responsibility and I will name someone who will bring dignity to the court, someone who will be able to do the job and someone who will sit on that bench and interpret the Constitution and not use the bench from which to legislate."

The view from inside the federal courts might be too narrow for a prospective Supreme Court nominee, say senators who suggest President Bush look for O'Connor's replacement beyond the bench.

Others hoping to catch the president's ear warn that a justice without an established record wielding a gavel could be a wild card.

Going outside the federal courts would bring some humanity into the often-criticized decisions of the nation's highest court, argued Senate Judiciary chairman Arlen Specter (search), R-Pa.

As a federal judge, you "look at records, you read cases, you have very little contact with people," Specter said after meeting with Bush on Tuesday. "But if they had a little more practical experience and didn't work so much within the footnotes and the semicolons, you might have a little different perspective, and I'd like to see that added to the court."

The justices themselves have indicated to the Senate that they would welcome non-judges, said Sen. Patrick Leahy of Vermont, top Democrat on the Judiciary Committee, who attended the same meeting with Bush.

"I know they see a number of benefits that could come to having somebody from outside the judicial monastery," Leahy said.

Chief Justice William H. Rehnquist never served as a judge before he was named to the court.

Senate Democratic leader Harry Reid of Nevada said Bush should look to GOP senators for his court pick, and he's suggested several he thinks fit the bill: Judd Gregg of New Hampshire, Lindsey Graham of South Carolina, Mel Martinez of Florida, Mike DeWine of Ohio and Mike Crapo of Idaho.

Reid said that he "probably did those people more harm than good" by mentioning them.

"The right wing," he said, "will likely rise up and say there must be something wrong with that person if Reid likes him."

Bush was noncommittal. "I'm going to be deliberate in the process," he said.

In a sign that the White House may be open to a lesser-known candidate, White House political adviser Karl Rove asked Graham in a telephone call last week whether he knew of anyone the White House should be considering whose name hadn't been mentioned. Graham suggested Chief Judge William Wilkins of the 4th U.S. Circuit Court of Appeals in Richmond, Va., Graham spokesman Kevin Bishop said.

More Supreme Court justices have been picked from outside the federal judiciary than from the ranks of the courts since 1900. Statistics show that 33 of 61 justices confirmed since 1900 were not federal judges at the time of their selection.

They include:

— A law school dean: Harlan Stone in 1925.

— Two governors: New York Gov. Charles Hughes in 1910 and California Gov. Earl Warren in 1953.

— Four attorneys general — William Moody in 1906, James McReynolds in 1914, Frank Murphy in 1940 and Tom Clark in 1949.

— Six attorneys: Joseph Lamar in 1910, Louis Brandeis in 1916, George Sutherland and Pierce Butler in 1922, Abe Fortas in 1965 and Lewis Powell in 1971.

Seven members of today's Supreme Court were federal appellate judges at the time of their appointments. O'Connor was an Arizona state appeals judge and Rehnquist was an assistant U.S. attorney general.

Only one of the names supposedly on the White House short list is not a federal judge: Attorney General Alberto Gonzales, a former Texas Supreme Court justice. The rest are federal appellate judges: Samuel Alito, J. Michael Luttig, Michael McConnell, John Roberts Jr. and J. Harvie Wilkinson III.

Democrats offered three more names Tuesday: U.S. Appeals judges Sonia Sotomayor and Ed Prado, and U.S. District Court Judge Ricardo Hinojosa, all of whom are Hispanic.

Some conservative partisans say that Bush should be careful if he picks someone from outside the federal courts.

"You don't want somebody who confuses politics and law and who thinks that his job as a Supreme Court justice is to make political decisions and not apply the law," said Wendy Long, lawyer for the conservative Judicial Confirmation Network.

Conservatives already are upset at what they call the federal judiciary's streak of "judicial activism," and some believe that putting a non-judge on the court would not help, said John Eastman, professor of constitutional law at Chapman University School of Law and the director of the Claremont Institute's Center for Constitutional Jurisprudence.

"I would be surprised if the president would make that move, considering the history and what the fight's about: judicial activism versus constitutional interpretation and strict constitutionalism," Eastman said. With a non-judge, he said, "you don't have somebody who has proven themselves to adhering faithfully to the law on the bench."