After O’Connor

What's next for abortion, gay rights and post-9/11 civil liberties? Activists and scholars debate the Supreme Court's future.

Topics: Supreme Court

Nan Aron, president, Alliance for Justice

Will President Bush reach out across the aisle and pick a candidate who enjoys broad Democratic support? That nominee would be easily confirmed. But if he nominates a candidate whose record suggests that the court would move in a more radical direction, far from the mainstream and jeopardizing the progress America’s made, then I anticipate a fierce battle.

The Alliance for Justice is extremely concerned that, given his track record, President Bush will nominate a judge hostile to women’s rights, the environment and consumer protection.

Choosing a Supreme Court justice is the most important act of a president. All the nation will look to the White House to see what President Bush will do. We urge him to do what his predecessors in the White House have done — nominate a consensus candidate with the support of the other party. In so doing his nominee would sail through confirmation, benefiting both his party and the country for decades to come.

If he names a candidate who would shift the ideological balance of the court, putting individual rights in jeopardy, we anticipate that [these] extraordinary circumstances would justify a defeat.

Cass Sunstein, Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago

This will be an extremely intense and probably ugly battle ahead. O’Connor has been an old-style conservative — one who believes in tradition, in respect for the past, and in incremental change. Many modern conservatives reject incremental change; they think the Constitution has been badly misinterpreted and that it’s time to right old wrongs. The filibuster deal is completely off, I think.

The Bush administration isn’t monolithic, but key issues that will shape the battle include the president’s power to fight the war on terrorism, the right of privacy, gay and lesbian rights, separation of church and state — that’s a really big one — federalism, abortion, gun control, property rights and affirmative action. I think the Bush administration will seek a reliable, even staunch conservative — one who isn’t likely to be unpredictable.

As far as who Bush might pick, Michael McConnell [currently a judge on the 10th U.S. Circuit Court of Appeals] is very conservative — and also superb, principled and judicious. He’s much more conservative than O’Connor, but he’d be a fine choice. For liberals, there are lots of worst-case scenarios, unfortunately!



Barry W. Lynn, executive director, Americans United for Separation of Church and State

Todays announcement by Sandra Day OConnor potentially opens the door to the greatest change in the courts direction in modern history. Although OConnor was a conservative justice, she often saw the complexity of church-state issues and tried to choose a course that respected the countrys religious diversity.

Religious right leaders are obviously going to throw their weight around. They expect the next Supreme Court seat to be filled by a justice in the mold of Justices Antonin Scalia or Clarence Thomas. They don’t want any surprises, or “one more Souter,” as they sometimes say.

The so-called compromise over the filibuster is troubling. The Senate followed that deal by rubber-stamping three of the administration’s most outlandish judicial nominees. Two of them, Janice Rogers Brown and William Pryor, are major threats to the separation of church and state. It is my hope that the filibuster is still a viable option in the face of a nominee with a record of hostility to the First Amendment principle of church-state separation.

I think President Bush would like a Supreme Court that would turn back a number of civil rights advancements and weaken the separation of church and state. The administration realizes that an important constituency, its religious right base, is clamoring for greater influence on the Supreme Court.

Our organization opposed the nomination of Michael McConnell to the 10th U.S. Circuit Court of Appeals. We would likely join with other public interest groups in opposing his nomination to the Supreme Court. Not only is he wrongheaded on church-state issues, but he also harbors contempt for Roe vs. Wade.

It would be disastrous for all Americans if this administration gets the opportunity to fill more than one vacancy on the Supreme Court. With O’Connor’s retirement, that’s now a likely scenario, and it’s highly disconcerting.

Nancy Keenan, president, NARAL Pro-Choice America

The shape of this nomination will be determined by President Bush — will he unite the country by consulting senators from both parties and finding a consensus pick, or will he try to force a hardcore conservative through on a partisan vote? If he chooses the latter course, it would certainly fit the definition of a “special circumstance” that would warrant a Senate filibuster. Certainly, senators should not give their assent to any nominee who can’t demonstrate a commitment to personal freedom, or who won’t answer questions about such basic constitutional questions as the right to privacy.

Justice Sandra Day O’Connor’s decision to retire from the Supreme Court marks a significant moment for the values of individual freedom and the right to privacy that are core principles under Roe vs. Wade. We’ll look back on Justice O’Connor as someone who put reason ahead of ideological fervor, standing her in stark contrast to many of the judges who might replace her if the radical right gets its way. When it comes to reproductive freedom, her tenure has been one of narrowly averted disaster. At key junctures when a woman’s right to choose could have been lost entirely, she kept Roe alive, but at a significant cost for many of our most vulnerable women. Now that she has retired, stakes are high — and NARAL Pro-Choice America is prepared to defend Roe vs. Wade against anti-choice nominees.

The radical right has been trying to overturn Roe vs. Wade for a generation, and they are looking to President Bush to get them to that promised land. There’s no question it’s their top priority — and one that he has shared throughout his political career. But if he chooses that route he’ll have a fight on his hands with the 60 percent of Americans who disagree.

Roberta Combs, president, Christian Coalition of America

We believe that we have already seen a prelude to what is on the horizon. The liberals have shown during the nomination process of the lower court nominations that they are going to fight with all their vigor on the Supreme Court fight. All over Washington in the next couple of weeks there will be “war rooms” that will be set up on both sides to fight and support the president’s nominee.

This is going to be the most powerful fight ever in the history of the Supreme Court nomination process and we will be ready. The Christian Coalition of America has set up our own “war room” around the country. As of last week, CCA has formed the National Judiciary Task Force. In the next few weeks, we will have a state chairman in every state in the country. The main goal of the task force is to be prepared and ready with our grass roots to make certain President Bush’s nominee is confirmed. We will have thousands of petitions, make phone calls to every one of the 50 senators and have rallies in support of the nominee in every state.

As we see it, the key issues the Bush administration will have in mind when making nominations are overturning Roe vs. Wade, allowing the Ten Commandments and crhches in public places, and overturning the Massachusetts decision allowing same-sex marriage.

The best-case scenario is that Janice Rogers Brown will be nominated and confirmed. She is an American Cinderella story. She was raised in the segregated South by sharecroppers and rose to become a state Supreme Court judge in California. She is a minority by being a woman and an African-American. Justice Brown is very qualified and would do an excellent job. The worst-case scenario would be the confirmation of someone who does not uphold the Constitution and legislates from the bench.

Ben Brandzel, campaign director, MoveOn PAC

Now that Justice O’Connor has resigned, our members and the American people know that some of our most basic rights and freedoms are on the line in a very real way. O’Connor is a very respected and, in many circles, beloved justice, which ensures there will broad engagement in finding the right replacement for her. But also, we know that the balance of the court is really in the air, and could be shifted dramatically by the wrong nominee. So the priority of our campaign and our members’ energy around defending their rights couldn’t be higher. We’re anticipating a sustained and intense campaign to protect our rights if Bush’s nominee is not in the same vein as Justice O’Connor.

Let’s look at Bush’s Patriot Act, when Bush exploited people’s mourning after 9/11 and gave the federal government unchecked powers to spy on our private records, communication and even our homes.

Or the way Bush used the Schiavo tragedy to score political points by violating our most basic individual right, the right to make our own private family decisions.

When Bush nominates a new Supreme Court justice, the American people will insist that our senators do what it takes to protect our rights — it’s that simple. And I think that’s exactly what the Senate will do. They know that people won’t tolerate an extremist nominee, just like they didn’t tolerate the president’s outrageous meddling in the Schiavo family tragedy. Republicans learned a hard lesson about following their radical leadership into disaster, and Democrats saw that they can stand up for our rights and win.

A filibuster may be necessary to stop a nominee who poses an extraordinary threat to our rights. If that happens, we trust the 14 senators who signed the compromise that ended the “nuclear option” will keep their word. The public has been against the “nuclear option” from Day One. If it comes down to that fight, I know the American people will win, and our rights will be preserved.

Mark Moller, senior fellow in constitutional studies, Cato Institute; editor-in-chief of Cato Supreme Court Review

Justice O’Connor’s retirement presages a blockbuster fight over the next Supreme Court nomination. Her status as a judicial moderate only heightens the tension: Liberal activists can now complain that Bush will have an opportunity to replace a “swing vote” with a conservative “ideologue.” A tough fight and filibuster is all but certain for any judge that watchdog groups label “right-wing.” Generally, that seems to include judges who might enforce constitutional limits on federal and state governments.

There is only one problem: The label doesn’t fit. That’s surely the lesson of this surprising Supreme Court term — which saw Clarence Thomas defending sick marijuana users in Gonzales vs. Raich and “liberal” justices, like John Paul Stevens, siding with rich property developers in Kelo vs. City of New London.

Predictably, liberal critics demand that Bush replace O’Connor with someone who shares her centrist tendencies. And yes, O’Connor was a swing vote. But conservatives should remind critics that O’Connor — who spent a post-law-school year volunteering for Barry Goldwater’s Senate reelection campaign — also is far more of a “conservative” than her critics, right and left, are willing to credit. That’s surely the lesson of this surprising Supreme Court term — which saw O’Connor closing her tenure with stinging dissents in cases like Gonzales v. Raich, involving a Commerce Clause challenge to federal drug policy. There, she argued that the Court should aggressively place new constitutional limits on federal power.

The fact is, liberals are all mixed up about “conservative” judicial philosophy. For example, federalism, a liberal bugaboo, arguably works to liberals’ benefit, since blue state policies (gay marriage, stem cell research, global warming) are most successful on the local level.

In fact, classic “conservative” judicial doctrine seems to be undergoing reassessment on the right. National Review’s Ramesh Ponnuru, for example, recently pooh-poohed the federalism “revolution.” Why encourage judges to rouse themselves, he asks? On average, they are no friends to conservatives. President Bush, too, has been AWOL in the big federalism cases. Indeed, he invariably asks the justices to give him extreme deference.

Thus the stage is set for the most incoherent political dust-up in recent memory: a ritualized fight over judicial nominees driven by habit and partisan rancor, in which the two major parties, while dutifully chanting old slogans, are more confused about what’s at stake than ever before.

Phyllis Schlafly, founder and president, Eagle Forum Education & Legal Defense Fund

I expect President Bush to fulfill his campaign promise by appointing a justice like Scalia or Thomas. He would be someone who believes that the supreme law of the land is the constitution and not what the latest Supreme Court decision is.

Most conservatives are extremely distressed with the way the court has tried to rewrite the constitution and we want good judges, strict constitutionalists, who believe in the way the constitution was written and not the way some justices wish it was written. You’ve got a clear example of this with the Kelo decision.

The Supreme Court just reversed its very firm decision in the sodomy case. And if you can rethink sodomy, you can rethink abortion. We don’t want someone who will say Roe v. Wade is the law of the land, because it isn’t the law of the land. It’s a Supreme Court decision.

After O’Connor’s last two votes against the Ten Commandments, we’re delighted that she has retired. Although, I do believe she was right on the Kelo case. She is noteworthy for switching back and forth. She kind of fits the stereotype of a woman who changes her mind.

Brian C. Anderson, senior editor of City Journal, the Manhattan Institute

With Sandra Day OConnor announcing her retirement, the battle over the courts will be even nastier than it would be if William Rehnquist were the justice stepping down, since in many important decisions, OConnor has been the swing vote empowering the courts liberal bloc.

That is, you wont be replacing one sometime originalist (Rehnquist) with another originalist — though that may soon follow — but a sometime advocate of the living Constitution (O’Connor) with an originalist. Thats an enormous threat to the Democrats, who for decades have been the party of the living Constitution, achieving through the courts what they couldnt win at the ballot box.

I think the filibuster deal puts the Democrats in a difficult spot, since they have agreed to filibuster only the most extreme of candidates, making it harder for them to oppose well-respected judges like J. Michael Luttig or John Roberts.

The important thing for conservatives will be to nominate a justice who upholds what Scalia calls the enduring Constitution. That means, he or she will understand that America adopted a written Constitution precisely because it doesnt change over time, as does the unwritten British constitution. It means that they believe high-court judges must base their decisions on the text and structure of the Constitution, as originally understood (and this implies that there are right and wrong readings of the law). And they must be impartial interpreters — otherwise they are politicians.

Again, liberals will oppose such a nominee because they have become the party of the living, evolving Constitution on issues ranging from abortion to, most recently, property rights and religious expression in public, where liberal justices have discovered things in the Constitution that would have shocked and appalled its original architects.

Regarding potential nominees, Luttig would be a great choice — hes a sharp legal thinker in the Scalia mold. Ive also been impressed by the legal writings of Michael McConnell. A worst-case scenerio would be the nomination of a non-originalist like Alberto Gonzales.

Ron Daniels, executive director of the Center for Constitutional Rights

Given the Bush administration’s clear intent to push forward what has been called a conveyor belt of conservative, right-wing appointees to the judiciary, including the Supreme Court, this is a crucial moment in the country’s history. There is the real danger that the Supreme Court will become simply a rubber stamp for the executive branch. It’s a very frightening moment, because the culture of rights that we’ve built up over the last 100 years could be undone by appointments to the Supreme Court that tip the balance.

Coming from the vantage point of many of us who feel that civil liberties and the rule of law are under assault, you at least felt that you potentially had a chance with Sandra Day O’Connor on the court. In fact, very often people aimed their arguments at her, because she was the influential voice on the bench on many of these decisions. She saved the day for whatever vestige of affirmative action we have left. If the next appointment is to the right of O’Connor, someone like Scalia or Clarence Thomas, it’s self-evident what will happen. It’ll be 5-4 the other way on many critical decisions. There could be a fundamental sea change on cases like Roe vs. Wade and the last vestiges of affirmative action.

President Clinton set a pattern here. He did not appoint the most liberal judges he could have appointed. He appointed moderates, in the face of the Republicans crying, as they have a right to do, that they didn’t want “liberal extremists.” This has not been the case as relates to the Bush administration’s recent appointments to the appellate division, and that’s why there’s the fear that, when it comes to the Supreme Court, he will appoint people in lockstep with the agenda of the radical right, allowing that agenda to be more readily imposed.

Democrats reserved the right, in a situation where they see a nominee as being extreme, to filibuster. If Bush comes forward with a nominee who is clearly anti-civil rights, anti-civil liberties, anti-labor, anti-women’s progress, and anti-environment, it will have to be an all-out fight. That means massive pressure on Congress, both Democrats and Republicans, for moderation and for sanity. It means mobilizing demonstrations to increase the public outcry, so that the American public has a sense of what’s at stake. And I wouldn’t be surprised if that entailed people going to the point of civil disobedience to call this not only to the attention of the American public, but to the world. I can’t forecast what types of civil disobedience might take place; I’m just saying it might go that far, in terms of people being willing to take dramatic steps to show the world that there are forces in this country that are not prepared to sacrifice the Bill of Rights to right-wing extremists.

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