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October 2, 2005
The Female John Roberts?

While various news organizations continue reporting that President Bush still hasn't made his decision on a replacement for Sandra Day O'Connor on the Supreme Court, the speculation on the candidates keeps widening. A newer name gets added today by MS-NBC, a potential stealth candidate that may appeal to the White House as a female version of John Roberts. Maureen Mahoney, who testified on behalf of Roberts during his confirmation hearing at the Judiciary Committee hearing, might rise to the top of Bush's list even as she flies mostly below the media radar:

There continues to be talk in legal circles that he could pick one of three longtime Bush loyalists: White House counsel Harriet Miers, the first women president of the Texas State Bar and Bushs former personal attorney; Attorney General Alberto Gonzales, Bushs longtime friend, who would be the first Hispanic on the court; and corporate lawyer Larry Thompson, who was the governments highest ranking black law enforcement official when he was deputy attorney general during Bushs first term.

Other candidates mentioned most frequently in recent days include conservative federal appeals court judges J. Michael Luttig, Priscilla Owen, Karen Williams, Alice Batchelder and Samuel Alito; Michigan Supreme Court justice Maura Corrigan; and Maureen Mahoney, a well-respected litigator before the high court.

Mahoney's name has not appeared on many short lists bandied about in the media, and the public knows little about her. A quick check into her background could generate some interest, as she not only resembles John Roberts in her background, but could even negate some of the smears launched against Roberts early in the confirmation process.

Mahoney litigates for Latham & Watkins as a partner specializing in appellate law. Like Roberts, she has experience before the Supreme Court, having argued thirteen cases. Her first case came in 1988 and her last just recently, when she successfully overturned the Arthur Anderson conviction in the Enron case. That could count as a strike against her with Democrats, who would love to paint her as a player in that kind of scandal, but no one would argue that Arthur Anderson should have been denied counsel in its appeals -- and she won the case on a unanimous decision. She also defeated the Bush administration in its affirmative-action case against the University of Michigan, a case that a few Judiciary Committee members tried to use to paint Roberts as a racist.

Mahoney has similar tenure within the US government as Roberts as well. She served with Roberts in the Bush 41 administration in the Solicitor General's office for a couple of years before getting a nomination to the appellate bench herself, one that went nowhere before Clinton took office, when she returned to L&W and continued her distinguished career as an appellate specialist. L&W lists among her accomplishments such recognition as this:

* Rex Lee Advocacy Award
* Nat'l Law Journal's naming her one of the top 50 female litigators
* Appointed by Rehnquist as Chair of the Supreme Court Fellows Commission

Also, like Roberts, Mahoney clerked for William Rehnquist prior to his elevation to Chief Justice. Mahoney never served on the bench, while Roberts had less than two years, but no one has insisted on appellate experience for a Supreme Court justice. Democrats even suggested nominating a Republican Senator instead of a practicing attorney for the last nomination, which makes a lack of appellate experience a non-starter for an argument against Mahoney. However, her conservative outlook seems beyond question, according to this blurb at the blog Underneath Their Robes:

--she was previously nominated for a federal judgeship under Bush I (but President Clinton took office before she could be confirmed);

--she is Republican, and she was on the Bush II transition team (and made the maximum contribution allowable under federal law to President Bush's 2000 presidential campaign);

--she was reportedly considered by the Bush Administration for the post of Solicitor General, before Ted Olson got the job, and also for a seat on the D.C. Circuit;

--she was picked, presumably by the White House Counsel's Office or the DOJ's Office of Legal Policy, to testify on behalf of Judge Roberts at his recent confirmation hearings (alongside such conservative stalwarts as Jennifer Cabranes Braceras, Robing Room Report's Most Delicious Diva);** and

--Nina Totenberg has described Mahoney as "a very, very conservative woman Catholic."

If anyone wants to look for a surprise candidate, one that could duplicate many of the same problems for the Democrats that the Roberts nomination created, Maureen Mahoney might just be that nominee.

UPDATE: A couple of thoughts based on the comments posted thus far. I still prefer Janice Rogers Brown for the nomination. I just wanted to highlight what I think might provide an interesting choice for Bush if he wants to follow the John Roberts model for the next nominee. Mahoney hasn't received a lot of press attention to this point.

Also, don't get hung up on her clients. She represents people who pay for her services; just like John Roberts, she is a hired gun for appellate litigation. Her background and her work on behalf of the Bush administration will provide more guidance of her philosophy than her client list.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at October 2, 2005 5:54 PM

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