The withdrawal of George W. Bush's nominee for the U.S. Supreme Court is driving the president to a tried-and-true formula for filling a high court vacancy: tapping a federal or state judge with a solid conservative paper trail.
To win confirmation, Bush's nominee to succeed the retiring Justice Sandra Day O'Connor will need support from conservatives that Harriet Miers lacked and backing from moderates to overcome opposition in a partisan-charged Senate.
That would make Bush resort to names, mostly judges, widely circulated before the selection of Miers, the White House counsel who never had been a judge.
"If you don't want to do something that's unorthodox, you look to the bench," said Fred McClure, a lawyer in the counsel's office for Presidents Ronald Reagan and George H.W. Bush.
In selecting Miers, Bush bucked a three-decade trend of picking sitting judges for the Supreme Court. It took little more than three weeks before Bush's attempt to put Miers on the court blew up.
The current nine justices were judges before their appointments to the high court.
But senators, who must approve a nominee, have said the justices themselves told them this year they want someone without judicial experience to serve on the court.
The current court is full of people with experience as a federal judge or in academics, said Republican Sen. John Cornyn, Texas, who has been mentioned as a possible nominee. "What you see is a lack of grounding in reality and common sense that I think would be very beneficial," he said.
Experience on the bench is not a requirement for the high court, but "someone who is not at all versed in constitutional law, and who didn't show a very quick ability to learn it, would be in trouble," said Democratic Sen. Charles Schumer, who is on the Senate Judiciary Committee.
Conservative pundits and commentators complained that Miers could not prove she had a conservative judicial philosophy because she never was a judge or undertook constitutional arguments.
"The best predictor of future Supreme Court performance is prior court performance," said Wendy Long, counsel for the Judicial Confirmation Network, created to support Bush's picks for federal judgeships.
But the late Chief Justice William H. Rehnquist, the court's conservative leader for decades, did not have bench experience before joining the Supreme Court in 1971, reported AP.
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