A hard seat to fill

The Supreme Court

Jul 7th 2005 WASHINGTON, DC
From The Economist print edition

The most difficult domestic decision of George Bush's presidency

WHOEVER George Bush chooses to replace Sandra Day O'Connor on the Supreme Court, the nomination is likely to precipitate a partisan war. Much of his second-term agenda may then be engulfed in the battle. Assuming he prevails, his choice could help put a conservative stamp upon American life that would long outlast his presidency; but he could also end up driving moderate voters away from the Republican hegemony he is striving to build.

No one in Washington, DC, has seen anything like the lobbying frenzy that greeted Justice O'Connor's announcement. From the right, Progress for America said it would spend $18m on television advertisements supporting whoever Mr Bush nominates; another conservative group, the American Centre for Law and Justice, e-mailed 850,000 people within an hour of her resignation. On the left, People for the American Way and Alliance for Justice, which between them raised $6m just for the dress rehearsal over Senate filibusters, will fight whoever the president sends for confirmation. The Washington Post guesses lobby groups will spend $50m-100m on this battle.

Much of the money will be squandered: it will have little impact on who gets chosen. As Tom Mann of the Brookings Institution points out, the campaigns will cancel each other out. But the war chests show how much is at stake ideologically.

For social and religious conservatives, this is the political battle of a generation, the culmination of a 25-year campaign that began with Ronald Reagan's election in 1980 and continued with the Republican takeover of Congress in 1994. The Supreme Court is the only branch of government that conservatives do not control.

For years, they argue, unelected judges have been “legislating from the bench” on issues such as abortion and gay marriage. So long as conservatives did not control the presidency or Congress, there was little they could do. But now, argues Bill Kristol, the editor of the Weekly Standard, they have a chance to implement a judicial revolution that will match their economic and foreign-policy achievements.

Conservatives' eagerness to seize that chance can be judged from their willingness to remove the filibuster as a weapon in the Senate's judicial hearings and from the passions roused by the Terri Schiavo affair; in both cases frustration at the courts boiled over in congressional threats against judges. It is this pent-up passion on the right, plus the inevitable response from the left, that explains the money being spent—rather than anything that will actually change at the Supreme Court.

The judicial consequences of Justice O' Connor's retirement have been somewhat exaggerated. Ralph Neas of People for the American Way has said that if the court reflected the views of its most conservative members—Antonin Scalia and Clarence Thomas—there would be a legal revolution restricting abortion, civil rights, environmental protection and privacy. Whether that is true or not, replacing Justice O'Connor will not bring it about.

Justice O'Connor was a moderate conservative. In the 21 cases this term that ended in five-to-four decisions, she voted on 16 occasions with Messrs Scalia, Thomas and Chief Justice William Rehnquist. She has usually been with them in states' rights cases, voted with them in Bush v Gore and this term supported their dissent in Kelo v City of New London (where the court upheld local-government powers to make compulsory purchases of private property).

The main difference between her and the three harder-line conservative justices is that she tended to base her decisions on the narrow facts of a case, rather than on sweeping legal principle, leaving room to change her mind later. So if she were replaced by a doctrinaire conservative, there would be a change, but not necessarily a dramatic one.

In abortion cases, she sided with the liberals after 1992, when she voted to uphold the core principle of Roe v Wade (this established a constitutional right to abortion based on the right to privacy). Even without her vote, though, a five-justice majority remains in favour of the principle, so her resignation does not directly imperil Roe v Wade.

But it could make a difference to specific restrictions on abortion. In 2000, Justice O'Connor cast the tie-breaking vote that invalidated a Nebraska statute banning partial-birth abortions that did not allow for health exceptions if a mother's life were endangered. In its next term, the court will consider a New Hampshire law requiring minors to notify their parents if they want an abortion.

Justice O'Connor's vote was also decisive on affirmative action. In 2003, she wrote the liberal majority opinion that upheld the University of Michigan Law School's racial-preference programme, which established that diversity in education is a compelling state interest. Yet at the same time she voted with conservatives to strike down the university's admissions programme for undergraduates.

So if Justice O'Connor is replaced by a more ideological conservative, it will not change the court at a stroke. But it will change the balance of the court more than would a similar switch for the ailing, consistently conservative Mr Rehnquist (which could also happen within a year). It will make the conservative faction more doctrinaire, polarise the court further, and set the stage for a battle royal when a truly liberal justice, like the 85-year-old John Paul Stevens, finally retires.

Turn to the right

The big question for Mr Bush is how far he wants to advance the long-range ambition of social conservatives to change the court fundamentally. Although he has often insisted he has no litmus test, he has also talked about appointing a true conservative, given the chance, and offered as his models Messrs Scalia and Thomas.

The president seems to share social conservatives' dislike of “activist judges”. He has consistently nominated judicial conservatives to lower-court posts, even renominating several when the Senate failed to confirm them. And his political strategy has been founded on courting the social and religious right. For them, this is payback time. Mr Bush seems unlikely to repeat what his allies regard as one of his father's two biggest mistakes (along with raising taxes): the nomination to the Supreme Court of David Souter, a supposed moderate conservative who has turned out to be among the most liberal judges.

And yet the risks of Mr Bush heading too far to the right are huge. It would split his party. It would put abortion back on the top of the political agenda—galvanising liberals and alienating moderates. The backlash could hurt his party in the mid-term elections and the prospects for his second-term agenda, which are tarnished enough as it is. And it is not even certain this is what the president wants: if he had his way, he would probably nominate his attorney-general, Alberto Gonzales, who is unpopular with the right for being insufficiently anti-abortion.

President Reagan won plaudits for appointing the first female Supreme Court justice. Mr Bush will need the wisdom of Solomon to please even half the country in nominating her successor.

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