Stage set for battle over a nominee to high court

Lawmakers on both sides praise O'Connor, a centrist in her post

The Retirement Of Sandra Day O'connor

July 02, 2005|By Gwyneth K. Shaw | Gwyneth K. Shaw,SUN NATIONAL STAFF

WASHINGTON - The retirement of Supreme Court Justice Sandra Day O'Connor drew a round of accolades from all sides yesterday - and set the stage for what could be a transforming battle over the future of the nation's highest court.

Inside the Capitol, where a sleepy Friday turned frenzied by midmorning, Republicans and Democrats alike praised the "cowgirl from Arizona" as a unique jurist who reshaped the court around her during the nearly 25 years she has served.

But as they lauded O'Connor, lawmakers were girding for a debate over her replacement, which will dominate the Senate all summer and test the fragile truce reached a few weeks ago on judicial nominations.

"I think really the Supreme Court will be the test now," said Sen. John Cornyn, a Texas Republican. "Everything we've been doing the last few years has been a warm-up to the main event."

Sen. Charles E. Schumer, a Democrat from New York, said the departure of O'Connor, the court's quintessential centrist, raises the stakes in the coming fight.

He called on President Bush to consult seriously with the Senate before naming a nominee to replace O'Connor. That echoed the sentiment expressed in late May by seven Democrats and seven Republicans who made a deal that averted a showdown over judicial nominations.

"We offered the president an olive branch, and we really hope, and pray, that he offers one back," Schumer said.

Bush said yesterday that he would talk to senators before announcing his decision.

Senate Majority Leader Bill Frist said he will work to ensure that O'Connor's replacement is ready when the court reconvenes in October. But it will probably take a month to six weeks after Bush chooses a nominee to open hearings, which could push a final vote into late September or beyond.

Interest groups have been waiting for this moment - and leaped into action as word spread of O'Connor's decision to retire. Without a nominee to chew on, there's not much to talk about yet. But senators are prepared for an ideological clash that could be bruising.

"People will be expecting everything," said Sen. Arlen Specter, a Pennsylvania Republican and the chairman of the Senate Judiciary Committee, which will vet the nominee in hearings.

"This is a very polarized country when it comes to the issues which will come to the Supreme Court of the United States. And I would expect people to want their choice," he said. "And everybody can't have their own way."

The nomination should be a defining moment for Specter, who drew the ire of conservatives when he voted against Robert H. Bork in 1986. He has waited patiently to ascend to the committee chairmanship but also has tried to distance himself this year from the partisan sniping over nominations.

The next few months are also important for Frist, a potential 2008 presidential candidate who has worked hard to establish his conservative bona fides. But his power has been limited by a string of recent frustrations, including the Democrats' blocking the nomination of United Nations ambassador nominee John R. Bolton.

Democrats, and some Republicans, urged Bush to replace O'Connor with someone in her image - a conservative, but also a pragmatist.

"This nomination of the first Supreme Court justice by this distinguished president gives him an opportunity to be a uniter, not a divider, to bring forth someone that can proceed much like the past 50 years, and to gain a large bipartisan vote, which will send a message to the American public that in these troubled times, we seek to bring together our citizens and not remain divided," said Sen. John W. Warner, a Virginia Republican. "It's terribly important."

Warner was one of the "Gang of 14, " the bipartisan group that stopped Frist's effort to end the use of a stalling tactic, known as the filibuster, at the end of May. The lawmakers forged a compromise that allowed votes on some of Bush's most controversial judicial nominees, while preserving the use of the filibuster - which requires 60 of the 100 members of the Senate to overcome - for use in "extraordinary circumstances."

The problem is that "extraordinary circumstances" is highly subjective. And a Supreme Court nomination is likely to test that deal, if not shatter it.

It has been 11 years since the last vacancy on the court. Many of today's senators were not in office the last time there was a confirmation battle, and three of the Republicans on the Judiciary Committee were on the panel then. The famously bipartisan, courteous Senate is a vastly more polarized place now, and Republicans - who control the White House and both houses of Congress - are determined to confirm a nominee to fight what they call the activism of many judges, especially on the Supreme Court.

Yesterday, most senators were quick to note that they don't have a litmus test for supporting or opposing a nominee. But it is clear that there are bedrock principles both sides believe must be met.

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