President Bush huddled with top aides Saturday to choose a conservative successor to Supreme Court Justice William J. Brennan Jr., whose surprise resignation has cost liberals their leading voice on an increasingly rightward-looking panel.
"I am going to try to make this determination as soon as possible," the president told reporters. "The process is moving."If confirmed by the Senate, the Bush nominee will help steer the Supreme Court on a conservative course well into the next century. The president's choice could be critical in shaping pending court decisions on such nationally divisive issues as abortion rights, race relations and civil liberties.
While some 15 candidates are known to be on the president's "long list," the White House "short list" is headed by Solicitor General Kenneth W. Starr, who turned 44 on Saturday. Starr had left the federal appeals bench to become the government's chief litigator.
A White House official said a final decision is likely in a week to 10 days. The tightly knit group that will make that choice met for 75 minutes on Saturday. It reviewed a contingency staff paper on Supreme Court vacancies written several months ago.
Besides the president, the group consists of Attorney General Dick Thornburgh, White House chief of staff John Sununu and presidential counsel C. Boyden Gray.
Before announcing his choice, the president will also consult with key Senate figures, including Bob Dole of Kansas, the Republican leader; Strom Thurmond of South Carolina and Orrin G. Hatch of Utah. Thurmond and Hatch serve as the ranking Republican members of the Judiciary Committee.
"This president is a conciliator," Hatch said. "He will pick somebody who is acceptable to the Democrats."
That apparently doesn't include himself.
"As for Orrin Hatch, well, he's not in the running," he said. "I don't want to be on the court, and I don't think the White House would pick me."
Congress starts its annual monthlong summer recess in early August. That means hearings on the Bush nominee will be delayed at least until early September.
The legislators also are under election-year pressure to end their work by early October. On the other hand, Bush would like to have a successor in place before the nine-member court begins its 1990-91 term the first Monday in October.
This timetable could cause problems for the president. Moreover, in choosing a replacement, Bush must steer a difficult course between pleasing conservatives and insuring relatively rapid confirmation by a Democratic-led Senate.
The choice of an entrenched conservative could trigger a prolonged and bitter Senate confirmation battle, such as the one that ensued when then President Ronald Reagan sought to elevate Judge Robert H. Bork to the nation's highest tribunal.
"I'd love to see him brought up again," Hatch said. "I don't think the American people would tolerate his rejection twice and neither would I.
On the other hand, if Bush picks a moderate, he is certain to incur the wrath of Republican conservatives, who are already angry at him for having deserted his no-new-taxes pledge as part of effort to reach a budget compromise with congressional Democrats.
"I hope the president will follow the historical practice of consulting with Senate leaders before making his choice," said Sen. Joseph R. Biden, D-Del., chairman of the 14-member Judiciary panel. Reagan did not consult with Biden before naming Bork. Biden then played a major role in Bork's defeat.
In the long-run, however, time is on the president's side because the two remaining all-out liberals on the court are both in their 80s. They are Justices Thurgood Marshall, 82, the court's sole black member, and Harry A. Blackman, 81.
The four Reagan nominees have already created an effective 5-4 conservative majority that has trimmed several liberal precedents in such key areas as abortion rights. Fully one-third of the decisions in the current term were reached on 5-4 votes.
Although the court swung toward the right in the Reagan era, Brennan, 84, with more than three decades of experience and a graceful temperament, still continued to played a moderating influence in the court's closed chambers. That influence will now be gone.
"Whoever Bush picks to come before our committee," Hatch said, "I suspect that with a few possible exceptions the debate will be quite lively.
"If the president picks a moderate person, the 5-4 decisions are likely to swing to the more moderate or conservative side of the court," he continued. "Some of the liberals, used to the past 30 years of a liberal court, won't take that lying down."