High Court Nominations: A Game for All the Marbles
July 20, 2005

by Joseph P. Tartaro
Executive Editor

Among the many hot topics in Washington, DC, this summer, none is hotter than the coming Administration-Senate battle over the future makeup of the Supreme Court.

The ability of a president to put his own stamp on the highest court in the land is seen by many students of politics as one of the ultimate prizes in national politics. In many cases, a president’s appointments to the court may have a greater impact on the future of the republic and its citizens than almost any legislative initiative in his platform, particularly since those justices—once approved by the Senate—will be sitting on the court for life, well beyond the terms of the president who appointed them.

Some presidents never get to make an appointment to the Supreme Court. Others have been disappointed to find that a person they believed shared that president’s political philosophy did not while on the bench. One of the great examples of this was the appointment by the “conservative” Republican Richard Nixon of Chief Justice Earl Warren, regarded by most scholars as an extremely liberal jurist.

Of course any such appointment poses a number of political and philosophical perils, and these days especially, almost any nominee will be vigorously opposed by either the political left or right, and often by elements of both. With every civil right hanging in the balance—not just firearms ownership and the right to self-defense—in an unusually confrontational environment, the President must feel the pressure for making the right choice and getting Senate approval.

Job One is filling the vacancy created by the retirement of Justice Sandra Day O’Connor, but the possible retirement of Chief Justice William Rehnquist because of his current battle with cancer as well as his age, and that of even a third justice, makes any battle over O’Connor’s replacement even more problematical.

Adding to the pressures for everyone involved in or concerned about the person nominated to replace O’Connor is the timeline. The Supreme Court is not in session as this is written in mid-July, but the high tribunal’s new session begins on the first Monday in October. During those few weeks in between, the Senate will be on holiday almost five weeks, from July 30 to Sept. 5.

At this point, it seems likely that the President will announce his nominee before the end of July. That would allow the Senate Judiciary Committee to schedule meetings and hearings during the August recess, and possibly allow the full Senate to vote on the confirmation in September.

Should any other justice retire during this narrow time frame, the President would be faced with the prospect of putting forth one or two more nominees, and the response from opponents and supporters could prove doubly acrimonious.

The Constitution says a president may appoint Supreme Court justices with the “advice and consent of the Senate.” The media’s role in this process isn’t mentioned in the Constitution, but many in the journalistic community seem to be having a field day offering their own advice about nominees and exploiting some of the more incendiary rhetoric coming from both directions, with a heavy emphasis on the views of Democrats, who, while in the minority, have been blocking Bush’s appointments to federal courts and ambassador to the United Nations with the use of, or threat of, a filibuster.

Democrat leaders on Capitol Hill, such as House Minority Leader Nancy Pelosi (CA) and Sens. Charles Schumer (NY) and Edward Kennedy (MA) have been attempting to dictate the kind of nominees the President should offer under the guise of offering “advice.” When these Democrats say they want a consensus “mainstream” nominee, they really mean they want the kind of judge who supports the Democrats’ platform. They want a judge who makes law rather than interprets it, who bypasses the Constitution’s original intent, in an effort to change it outside the legislative process.

“Over the past few months, we’ve seen Republican extremism reach new heights,” Pelosi told Democrat contributors in a fund-raising letter to the faithful in order to create the fear that shakes loose contributions. “Senate Republican Leader Bill Frist sought to rally the right to his side with the so-called Nuclear Option, while House Republican Leader Tom DeLay threatened judges for making decisions he didn’t agree with—even as violence against judges was raising alarm bells across the country. All of this laid the groundwork for the clash that the extremists have had their eyes on all along: the battle for the independence of the Supreme Court,” she continued.

Pelosi claimed the President and his fellow Republicans have an agenda linked to “the radical right wing” that would: turn back the clock on women’s rights; eliminate evolution from school textbooks; intrude into your family’s private life and medical decisions; decrease funding for programs that protect the public and the environment, and benefit big business and special interest groups.

She didn’t mention the right to keep and bear arms in her quest for contributions and support in the form of signatures on a petition to the President, but with her own record and that of allies like Kennedy, Schumer and Sen. Patrick Leahy (VT), ranking member of the Judiciary Committee, you can bet that the gun issue is very much on the Democrats’ minds when it comes to opposing court nominees.

As attorney and National Rifle Association board member David I. Caplan pointed out in a letter to a newspaper editor, while the liberals pretend to be on the side of the average citizen, the Supreme Court justices they consider “mainstream” were the five who voted recently to make it easier for government to seize your property. They were: Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer, and Anthony M. Kennedy.

The ones they always refer to as “conservative” or “right wing,” Justices Rehnquist, Antonin Scalia, Clarence Thomas, and O’Connor, were the minority who voted against allowing federal, state and local governments to take private property without any showing of blight.

The fight isn’t so much about people but about the future of the country.
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