Much is at stake with Bush's choice


The Retirement Of Sandra Day O'connor

July 02, 2005|By Paul West | Paul West,SUN NATIONAL STAFF

WASHINGTON - On a quiet, muggy, pre-holiday Friday morning, word of a Supreme Court retirement finally arrived - and with a stunning twist.

This was the Big One, the departure of Sandra Day O'Connor, the first female justice and the pivotal jurist on a closely divided court. The aftershocks from her announcement will be felt far into the future, in the realms of law, politics and, quite conceivably, American culture.

Most immediately, her resignation sharply raises the stakes - and ferocity - of a much-anticipated clash over the court's direction, legal scholars and political analysts said yesterday. It also creates a series of important decisions for President Bush and his advisers, from the selection of a replacement to the timing of that nomination.

"This is a vastly more consequential choice now for the president than replacing the chief justice would have been," said David Garrow of Emory University law school.

The ailing chief justice, William H. Rehnquist, whose departure had been more widely predicted than O'Connor's, is a fairly reliable member of the court's conservative bloc. By contrast, O'Connor has often been the justice whose vote decided cases, and her departure could well tilt a conservative court further to the right.

"This is probably the most significant appointment for the court" in nearly two decades, said Dennis J. Hutchinson, a University of Chicago law professor who edits The Supreme Court Review there.

"She's been the balance wheel of the court for at least the last half-decade. She's the one who has had the deciding vote or moderating vote on so many hot-button issues, whether it's affirmative action, abortion, states' rights and, to some extent, the religion clauses."

The confirmation fight in the Senate, which must approve her replacement, will be unlike any other.

"You have the 24-hour news cycle, the blogosphere, the incredible organizing by groups, for and against, with both sides literally raising millions of dollars. Their own legitimacy and power status in Washington is at stake here in ways that it wasn't in the past," said Hutchinson.

Analysts are already forecasting a long, hot Washington summer - and possibly autumn - in the struggle over replacing O'Connor, a story that figures to dominate attention during a period when the nation's capital is normally quiet.

"You really get the feeling that you're standing in the open field of Gettysburg, shortly before the action," said Jonathan Turley, a George Washington University law professor. "We've got two well-funded armies in Washington. Whenever you have this degree of preparation, money and personnel, something bad tends to happen. There's a certain sense of dread."

Bush and his advisers have been preparing for a Supreme Court vacancy for months, if not years. But the timing of the nomination could be almost as important as the choice of a nominee.

The president said yesterday that he would announce the appointment "in a timely manner." But he also promised to consult in advance with members of Congress, and his spokesman signaled that a nominee was unlikely to be announced before mid-July, at the earliest.

Delaying an announcement might be in Bush's best interest.

"History has shown that nominees left to twist in the summer wind of Washington tend to suffer from the exposure," said Turley. "This town is like an armed camp, and any nominee that comes forward will suffer in the process."

By most estimates, the fight over replacing O'Connor will be more intense than the one over a Rehnquist successor would have been.

"O'Connor has long been an icon for both sides. For conservatives, she's viewed as an unreliable justice, in terms of conservative values," said Turley. "For Democrats, she's viewed as part of that thin black line of justices protecting them from a conservative sweep."

If Bush sticks to his stated goal of choosing a justice in the mold of Clarence Thomas, he "could have the most lasting impact on American law of any president in history," the professor added. "After decades of 5-4 votes, there are a dozen different areas that currently dangle by a single vote."

At the top of the list of legal issues, for many on both sides of the judicial fight, is abortion. O'Connor, a supporter of abortion rights, has often cast the swing vote in abortion cases.

Regardless of who replaces her, though, there will still be a majority on the court that supports abortion rights, which were guaranteed by the landmark 1973 decision in Roe v. Wade that overturned state laws outlawing abortion.

A conservative spokesman in the fight over judicial nominees stressed that point in an effort to play down the emotional importance of abortion in the confirmation battle.

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