Supreme Court Justice Sandra Day O’Conner dropped a bombshell last Friday when she announced her retirement from the High Court. It caught everyone, including Pres. Bush, off guard.
The Bush administration was expecting to have to replace one of the justices, Chief Justice William Renquist, who has been battling thyroid cancer. He may yet tender his resignation, though some believe if he hasn’t done so by now, he may go for yet another term.
O’Conner was the type of justice that should be on the Supreme Court. She made her decisions based on the law and the Constitution, not on her own ideology. For that reason, she was known as a moderate and was often on the majority side of the fence as she cast the swing votes in a number of important cases, including abortion rights.
Unfortunately, it is unlikely that Bush will replace her with another moderate. It is more likely that her replacement will be a conservative Christian who will decide cases on his own value system, much the way Bush runs the country.
That would be extremely detrimental to our democracy as it might eventually lead to a lessoning of religious tolerance. As Justice David Souter wrote in his remarks in the recent Ten Commandments ruling, “A purpose to favor one faith over another, or adherence to religion generally, clashes with the understanding that liberty and social stability demand a tolerance that respects the religious views of all citizens.”
Bush is under pressure from conservatives to appoint someone with a history of opposing abortion rights. But Bush stated he would select someone who would faithfully interpret the laws and the Constitution.
That would be nice, but what he really meant was he would appoint someone who would faithfully interpret the laws and the Constitution from the perspective of the Bush Administration. He has a strong track record of making such appointments.
Obviously, any president would be tempted to appoint federal justices with an ideological slant similar to their own. That is why there are currently four conservatives and four liberals on the High Court.
But sometimes, a president gets it right. Ronald Reagan was a conservative. Yet he appointed O’Conner in 1981, the first woman to ever sit on the Supreme Court, and a moderate.
Not everyone always agreed with her decisions, including me. That’s not the point. She didn’t decide cases based on popularity of opinion or by referendum of the masses. She seldom tipped her hand in advance of a decision because she wanted to be very deliberate in making it.
Although in a perfect world, all judges would be completely neutral, we’re not living in a perfect world. Knowing there is no way Bush will ever appoint a moderate, let alone a liberal, even most Democrats are willing to go along with a conservative, at least up to a point.
But if Bush appoints another ultra-conservative to replace a moderate, don’t rule out the possibility of another Senate filibuster.
Bush said that the country deserves a “dignified process of confirmation.” I agree, except that’s just more Bush-speak for “Let me have my way without arguing over it.” The only way we can have a dignified confirmation process is if he appoints someone who is ideologically neutral.
Bush has never had to replace a Supreme Court justice. In fact, it has been 11 years since the last time one was appointed.
He might offer up a surprise nominee. He has taken a lot of flack lately over some of his other appointees, including his choice for U.N. ambassador, John Bolton. He may not be in the mood for yet another confirmation battle.
But don’t look forward to any moderation on Bush’s part. He is one of the most obstinate presidents in decades. So his nominee will probably be an arch-conservative. If so, anything’s possible in the Senate.