WASHINGTON — Justice Sandra Day O'Connor's retirement from the U.S. Supreme Court presents both opportunity and danger for President George Bush.
On the one hand, the president's hard-fought election victories finally give him his first opportunity to re-shape the nation's highest court.
On the other hand, depending on whom he selects for the lifetime appointment, Bush could alienate much of his political base and create a huge rift between pro-lifers and the Republican Party.
With its decisions on school prayer, pornography, the Ten Commandments, contraception, abortion and homosexuality, the Supreme Court has led the way over the last 50 years in shaping American culture. In doing so, many believe it has overstepped its bounds and become an agent of social change rather than the impartial interpreter of the U.S. Constitution.
O'Connor was usually part of the problem in this regard, said Douglas Kmiec, professor of constitutional law at Pepperdine University and former constitutional counsel to both Presidents Reagan and George H.W. Bush.
“It is not the province of un-elected judges to change the meaning of the Constitution,” said Kmiec. “Unfortunately, when the court departs from this notion, it departs grievously and often tragically. It hurts people who are least able to defend themselves, such as the unborn.”
Many voters have long viewed changes on the high court as a necessary step toward promoting a culture less hostile toward religion and more respectful of human life. But despite many opportunities by pro-life presidents to add new members to the court, the changes have not come easily.
President Ronald Reagan, who is remembered as a staunch advocate of the right to life, appointed three justices to the high court, two of whom — O'Connor and Anthony Kennedy — have not shared Reagan's view of the Constitution.
O'Connor and Kennedy have both cast critical votes on the court to nullify almost any legal restrictions on abortion, to keep “virtual child pornography” legal, and to strike down state laws against sodomy.
Then in 1990, President George H.W. Bush appointed David Souter, about whom little was known at the time. Now he's firmly in the O'Connor and Kennedy camp.
President Bush's supporters will watch very carefully this summer as he chooses someone to replace O'Connor. Several prospective candidates are being discussed in Washington (see sidebar).
“I think Bush wants to find someone who will respect the Constitution as it is written, and will not read into it rights and restrictions that are not there,” said Kmiec.
Don Stewart, a spokesman for Sen. John Cornyn, R-Texas, said O'Connor's successor should primarily be a qualified jurist with respect for legislative intent and the Constitution. The new nominee “should interpret what the legislators have done in line with the Constitution,” said Stewart, “but not try to create new laws out of whole cloth.”
With O'Connor's retirement, however, pro-abortion groups praised her record and called on Bush to appoint someone like her.
“I think all Americans ought to be happy with a replacement similar to her,” said Eliot Mincberg, general counsel of the People for the American Way, an organization that promotes, among other things, legal abortion, same-sex “marriage” legislation, and the elimination of prayer in public schools.
Stewart rejected the idea that Bush should seek to keep “ideological balance” on the court” by nominating a judge much like O'Connor. “If that's true, then the Clinton administration didn't get the memo.”
He specifically cited Clinton's replacement of Byron White — a dissenter in Roe v. Wade — with Ruth Bader Ginsberg, who supports legal abortion.
Abortion activists fear that Bush could push the court in a more pro-life direction. More than 30 years after the Roe decision struck down practically all regulations on abortion, that issue remains the most important as Bush prepares to name O'Connor's replacement.
“There's no question that 'reproductive choice’ is a big issue in this fight,” said Mincberg. He added that his group will probably launch a major advertising campaign against Bush's nominee if they find him or her unacceptable.
Bush's nominee will require confirmation by the Senate, where Democrats have steadfastly obstructed Bush's judicial nominees for four years through use of the filibuster to prevent a vote. Although the political consequences of using the filibuster against a Supreme Court nominee would probably be devastating for the party, Democrats could well do it anyway.
Still, seven moderate Democrats swore off filibusters earlier this year, making it likely that Bush's nominee will get an up-or-down vote this summer, no matter how difficult the confirmation battle becomes.
The political stakes in the fight over the court are even greater than usual for pro-lifers. This fall, the newly constituted court will immediately have the opportunity to review two important abortion cases.
One will likely come from Virginia, where the 4th Circuit recently struck down the state's law against partial-birth abortion. The other case is Ayotte v. Planned Parenthood, which will test New Hampshire's law requiring parental consent for a minor having an abortion.
David Freddoso is based in Washington, D.C.
Some possible successors to Justice Sandra Day O'Connor
Samuel Alito is the 3rd Circuit judge who fell on the losing (pro-life) side of Planned Parenthood v. Casey in 1991. In his dissent, Alito defended a Pennsylvania law requiring spousal notification for a married woman seeking an abortion: “The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems — such as economic constraints, future plans, or the husbands’ previously expressed opposition — that may be obviated by discussion prior to the abortion.” Alito is a candidate who has political allies on both sides of the aisle, making him more “confirmable” than others.
Janice Rogers Brown, District of Columbia Circuit Judge would be the first black female justice. She is a staunch pro-lifer whose nomination was held up for years by Democrats in the U.S. Senate. In her confirmation hearing, she denied that any “right to privacy” exists in the Constitution. Although it is believed that Bush would have liked to appoint her, the possibility is much less likely because she was only confirmed this year to the federal bench. Previously, she had served on the California Supreme Court, where she was the sole dissenter in a case that found Catholic Charities to be in violation of a law requiring employers to pay for insurance coverage of contraceptives.
Edith Brown Clement, after more than two decades on the federal bench, remains a relative unknown. But in her 2001 confirmation hearing to the 5th Circuit Court of Appeals, Brown said, “The Supreme Court has clearly held that the right to privacy … includes the right to have an abortion … The law is settled in that regard.”
Emilio Garza of the 5th Circuit wrote a 1997 decision in which he called the Supreme Court's abortion precedent “inimical to the Constitution.” Although he reportedly does not want the nomination for the high court, Garza is a strong candidate and would be the first Hispanic on the Supreme Court.
Alberto Gonzales, Attorney General, often discussed as a possible nominee because of his close friendship with Bush, appeared to take himself out of consideration with comments published July 7. Pro-life groups had been distrustful of Gonzales because of an abortion decision he had made while on the Texas Supreme Court.
Edith Jones, also of the 5th Circuit, would be a strong choice. In a 2005 case involving Norma McCorvey — the plaintiff in Roe v. Wade, Jones wrote, “If courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's ‘choice’ is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe Court knew.” She added, “That the Court's constitutional decision-making leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.”
J. Michael Luttig, who serves on the 4th Circuit Court of Appeals, is a judge whose opinions on abortion are closely guarded. He has written that as a circuit court judge he must defer to Supreme Court jurisprudence on abortion, but he has not given any hint what he would do if he were on the Supreme Court, making precedent. He is a former clerk for current Justice Antonin Scalia.
John Roberts now serves on the District of Columbia Circuit. While working as a deputy in the U.S. Solicitor General's office, Roberts argued, “[T]he court's conclusion in Roe that there is a fundamental right to an abortion … finds no support in the text, structure, or history of the Constitution.”
J. Harvie Wilkinson of the 4th Circuit is viewed with suspicion because of his well-documented belief in the “living, breathing” model of the Constitution. Wilkinson wrote a 1998 opinion upholding Virginia's parental notification law, but his rationale was that it “imposes only the mildest form of regulation upon the fundamental constitutional right to terminate an unwanted pregnancy.” He added that, “If the act were a consent statute or otherwise imposed more onerous burdens on the abortion right, we would have a very different case.”
— David Freddoso