Saturday, Aug 30, 2008
With William Rehnquist and Sandra Day O'Connor considering retirement, activists on all sides are preparing for a firefight over Bush's next high-court nominee.
Jun 27, 2003 | Jane Doe was 17 and pregnant. She wanted an abortion, but she knew that her antiabortion parents wouldn't approve. So she did what the law in Texas said she could do: She asked the courts to let her end her pregnancy without telling her parents first.
Jane Doe won her case. In June 2000, the Texas Supreme Court held that she had the right to an abortion without parental notification or consent. At the time, the decision was seen as at least a minor battlefield victory in the war for abortion rights. But now, three years later, it appears that the win may have come at a substantial cost. If the religious right has its way, "In re Jane Doe" will prevent George W. Bush from nominating to the U.S. Supreme Court the man who might -- might -- save legalized abortion in America: former Texas Supreme Court Justice and current White House Counsel Albert Gonzales.
The landmark Roe vs. Wade abortion ruling was unexpectedly on center stage Thursday as the U.S. Supreme Court issued its decision in another Texas case -- this one reversing a state law that outlawed private gay sexual acts between consenting adults. The majority relied on the 1973 abortion ruling in holding that gay sex falls within a protected zone of human liberty; in a scathing, mocking dissent, Justice Antonin Scalia argued that Roe vs. Wade was a mistake that should be overturned.
In the coming days, advocates and pundits will rail and rage over the court's decision in the gay sex case and its implications for the future of Roe vs. Wade. But the more direct and immediate threat to abortion rights will be in decisions not yet made, or not yet announced: the possible retirement plans of two current Supreme Court justices, and whether President Bush will nominate Gonzales to replace one of those justices.
With the end of the Supreme Court's 2002-2003 term Thursday, the retirement watch officially begins. Chief Justice William Rehnquist is 78 and in up-and-down health. Associate Justice Sandra Day O'Connor is 73 and apparently anxious to return home to Arizona. Rehnquist and O'Connor are both Republicans. If they want to let a Republican president name their replacements -- and if they want to avoid the specter of a Supreme Court confirmation fight in the middle of an election year -- they must either step down now or hang on and hope for the best until the summer of 2005.
It is possible that both of them will decide to wait, but most court observers expect at least one of the two -- Rehnquist, probably -- to retire.
"I suppose it's possible that Chief Justice Rehnquist will surprise us and decide that [the political climate] is just too contentious at this point, and that if Bush is reelected by a landslide in 2004 then the American people will have spoken and he can step down and Bush can get his hard-right people on the court," said Sheldon Goldman, a University of Massachusetts political science professor who studies judicial nominations. "But on the other side of the coin, Rehnquist might feel that he really does want to step down. He's had some health problems; he's getting on in years; he wants to enjoy the grandchildren or whatever, and he knows that it would be an impossibility to step down during a presidential election year."
The time may be right for the chief justice, and it may be even better for the president. "If I were George W. Bush, I'd be looking for it to happen this summer," said Nan Aron, president of the Alliance for Justice, a left-leaning public policy group that is closely tracking Bush's judicial nominations. "He's popular. He's just off of having waged a successful war. He's feeling his oats. And it's not an election year."
That's the good news for Bush. The bad news is that he may not be able to produce a nominee to replace Rehnquist -- or O'Connor - who will satisfy his right-wing base and still make it through the Senate. Hard-line conservatives have been enraged by this week's Supreme Court decisions that rejected a Texas law against sodomy and that for the first time firmly upheld the principle of affirmative action; Bush will certainly feel intense pressure from that quarter to nominate someone inclined to reverse those decisions along with Roe vs. Wade. Liberals and progressives, meanwhile, have effectively focused their energy and resources to block extremist appellate court nominees like Miguel Estrada, Priscilla Owen and William Pryor. And they've signaled that they're prepared to mount a powerful campaign if Bush nominates a hard-line conservative to the nation's high court.
Advocates on both ends of the political spectrum -- and, for the moment at least, everyday Americans -- are paying close attention to the judicial branch. If Rehnquist or O'Connor steps down in the days ahead, and if Bush can't find a Supreme Court nominee who will appease both the left and the right, this summer may bring a searing confirmation battle that touches every raw nerve in the body politic.
If either Rehnquist or O'Connor retires now, the odds-on favorite as a replacement will be White House counsel Alberto Gonzales. For the president, Gonzales is the complete package. At 47, he is young enough to stay on the court for decades. As a Hispanic, he represents a part of the ethnic geography where Republicans would like to make inroads. And as a relatively quiet conservative, he is someone the Democrats will have a hard time "branding as hardcore, right-wing ideologue," says David Yalof, a University of Connecticut political science professor who studies judicial nominations.
That distinguishes Gonzales from the hard-swinging right-wingers thought to populate the rest of Bush's short list. If Bush carries through with his campaign promise to nominate justices in the Scalia-Thomas mold -- say, federal appellate Judge Michael Luttig -- Senate Democrats could filibuster the nomination through the 2004 presidential election. But if Bush sends up the ostensibly more moderate Gonzales, Democrats may be willing to confirm his nomination, if only as the lesser of a lot of other evils.
There is a catch, however, and the Texas courts called her Jane Doe.
There are nine justices on the Texas Supreme Court. When Jane Doe's case reached the court in 2000, all nine of those justices were Republicans. One was Priscilla Owen, the staunch conservative whose nomination to the U.S. Court of Appeals Senate Democrats are currently filibustering. Another was Alberto Gonzales.
"In re Jane Doe" required Owen, Gonzales and their colleagues to interpret the Texas Legislature's Parental Notification Act. Like similar laws in a number of other states, the Texas act prohibits a young woman under 18 from obtaining an abortion without first notifying her parents unless she can establish in court that she is mature and "sufficiently well informed" to make the decision to abort on her own; that notifying a parent would not be in her best interest; or that notifying a parent might lead to physical, sexual or emotional abuse.
The girl known as Jane Doe claimed to meet the first of these tests -- that is, she argued that she was mature and "sufficiently well informed" to make a decision to end her pregnancy without first telling her parents. Six of the nine justices agreed. Alberto Gonzales was one of them; Priscilla Owen was not.
Gonzales joined the majority's opinion and also wrote separately to stress that he was simply applying the law the Texas Legislature had created. The law allowed for minors to seek abortions without parental consent through a procedure called a "judicial bypass," and Gonzales said the court could not arbitrarily declare otherwise. "To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that are not to be found in the words of the statute, would be an unconscionable act of judicial activism," he wrote. Gonzales made it clear that he was personally unhappy that Jane Doe would be having an abortion without parental consent -- he said he found it "personally troubling to me as a parent" -- but he said he was bound to apply the law "without imposing my moral view on the decisions of the Legislature."
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