With Bush vowing to take his time in finding a replacement for retiring Justice Sandra Day O'Connor, nobody has a clear sense of which way the President will go. That leaves corporate advocates to pore over a dozen or more names on the Supreme Court short list -- or is it a long list? -- in hopes of finding a replacement for O'Connor, a bane of social conservatives but a powerful ally of the business community. Like his father, who nominated New Hampshire jurist David Souter in 1990, Bush could make a surprise pick.
All of the candidates on Washington insiders' lists share a conservative faith in the free market and skepticism about the federal government's ability to regulate. But that's where the similarities end. Some are ideological purists in the mold of Justices Clarence Thomas and Antonin Scalia. This group is more committed to the advancement of rigid legal philosophies than it is to weighing the real-world impact of their decisions. Others are pragmatists, à la O'Connor, whose priorities are the reverse: They're more willing to compromise on principle to reach fair results. A third group is comprised of wild cards -- contenders whose scant judicial record does not provide the business community with much of an idea of how they might treat corporate issues.
The various prospects have vastly different types of experience -- some boast years in corporate litigation, for example, while others' experience is limited largely to academia. With that in mind, business lobbyists are quietly evaluating the list. The U.S. Chamber of Commerce has compiled dossiers on candidates, complete with rankings, and delivered them to the White House. The National Association of Manufacturers is waiting in the wings until Bush makes his decision. However, based on interviews with key players, business is clearly identifying its favorites. Here's how some of the would-be nominees stack up:PRAGMATISTS
-- SAMUEL A. ALITO JR. Third Circuit
-- EDITH BROWN CLEMENT Fifth Circuit
-- EDITH HOLLAN JONES Fifth Circuit
-- JOHN G. ROBERTS JR. D.C. Circuit
-- J. HARVIE WILKINSON III Fourth Circuit
Stanton D. Anderson, chief legal officer of the Chamber, says his group would like to see a nominee "who will apply the law to the facts and not come at it from a doctrinaire Left or Right." That sounds like a pretty good description of the departing O'Connor.
One candidate in the same mold is Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson III. He's hardly a doctrinaire conservative. In 2000, he sided with endangered wolves and against a North Carolina farmer when he rejected a challenge to the Endangered Species Act -- a law that's highly unpopular in Republican circles. And yet Wilkinson draws some of the business community's highest marks, thanks to his restricted view of judicial power. He's loath to flex his muscles by overturning longstanding laws enacted by politicians or deep-rooted precedents set by judges. The same could be said of two other jurists in this category: Edith Hollan Jones and Samuel A. Alito Jr. This is a group that doesn't like to rock the boat.
Also highly regarded because of their corporate experience are John G. Roberts Jr. and Edith Brown Clement. Until joining the court in 2001, Clement was a defense lawyer at Jones, Walker, Waechter, Poitevent, Carrere & Denegre in New Orleans. Roberts, a former deputy solicitor general for President George H.W. Bush, is a former partner at the Washington office of Hogan & Hartson, where he gained broad litigation experience representing corporations such as Toyota Motor Corp. (TM
) and Fox Broadcasting Co. (FOX
) "The court really doesn't have somebody who has represented the business community," says Glenn G. Lammi, chief counsel of the Washington Legal Foundation.WILD CARDS
-- JOHN CORNYN Senator (R-Tex.)
-- EMILIO M. GARZA Fifth Circuit
-- ALBERTO GONZALES Attorney General
-- JON KYL Senator (R-Ariz.)
-- LARRY D. THOMPSON GC, PepsiCo
These contenders are all reliable conservatives but lack experience on the bench or experience with issues important to business. That puts them at a slight disadvantage, because the business lobby has been unable to rely on a broad body of jurisprudence to gauge their underlying legal philosophy. The most visible member of this group is U.S. Attorney General Alberto Gonzales. A comparatively youthful 49, he only rarely crossed paths with business during his brief term on the Texas Supreme Court. His one significant decision came in 1999, when he penned an opinion limiting class action lawsuits.
Both Senator John Cornyn (R-Tex.), a member of the Judiciary Committee, and Senator Jon Kyl (R-Ariz.) are highly regarded in corporate boardrooms for their unflagging support for tort reform measures that benefit business. Cornyn sat on the Texas Supreme Court for seven years -- middling bench experience at best -- and Kyl has never been a judge. Rounding out the wild cards is Larry D. Thompson, now general counsel to PepsiCo Inc. (PEP
) and a member of the Chamber's board of directors. Good credentials, to be sure, but Thompson carries baggage: Business is still rankled by an infamous 1999 memo Thompson wrote while serving as Deputy Attorney General. In it, he set strict ground rules for dealing with corporate malfeasance.IDEOLOGUES
-- J. MICHAEL LUTTIG Fourth Circuit
-- MICHAEL W. MCCONNELL Tenth Circuit
To see the sharp contrast between legal pragmatists and their more ideological colleagues, consider the Fourth Circuit Court of Appeals, where Wilkinson and fellow short-lister Judge J. Michael Luttig have been sparring for years. In his dissenting opinion in the 2000 dispute between landowners and endangered wolves, Luttig, a friend of both Scalia and Thomas, sided with the farmer. He reasoned that Congress had exceeded its regulatory authority.
Limited regulation might sound good on paper, but it cuts both ways for CEOs. While Big Business chafes at many federal regs, in recent years it has begun to recognize the advantages of uniformity over a 50-state patchwork of laws. "Preemption [of state law by federal law] is the single most important recurring issue on the court's docket for the business community," says Mark I. Levy, head of the Supreme Court and appellate litigation group at Kilpatrick Stockton. "Business likes national uniformity." A 2002 survey by the law journal Judicature showed Luttig siding with business just 59% of the time.
Tenth Circuit Court Judge Michael W. McConnell, like Luttig, is a staunch social conservative known for his limited-government constitutionalism. But he also raises another red flag for corporate leaders: Despite a stint as a corporate lawyer, McConnell's experience has been largely in academia, as a law professor at the University of Chicago and University of Utah, where his research interest tended toward religion and the law. Some business lobbyists fret that he might be less interested in antitrust, securities regulation, and other commercial issues, and less inclined to vote to accept their petitions to the court.
Bush has promised to appoint someone who, as he says, won't legislate from the bench. But different flavors of conservatism could mean far different results. "What you want is a judicial climate that is predictable and certain," says John Engler, NAM president and CEO. Indeed, business executives like to say they would rather the law be certain than just. One thing they can be sure of getting is a conservative nominee from Bush. Whether they can plan accordingly is another matter. By Lorraine Woellert in Washington