Joseph Planta's Commentary - thecommentary.ca

Wednesday, 06 July 2005

The Supreme battle

By Joseph Planta

VANCOUVER - The news Friday that Supreme Court Justice Sandra Day O'Connor was retiring from the United States's highest court was greeted with surprise, but also with great anticipation. The surprise was borne in the fact that the court's vacancy was not because of the resignation of Chief Justice William Rehnquist, who has been ill with thyroid cancer. Though there had been some talk of O'Connor stepping down, what with an ill husband to care for, a Rehnquist retirement was the dominant bet.

Earlier this year, there was much debate in the Congress about the so-called 'nuclear option' proposed by Republicans. Senate Majority Leader Bill Frist championed the proposal that would have ended filibusters for judicial nominees. Not until a compromise was reached by moderate Republicans and Democrats, was the impasse cleared. Much of the partisan hand wringing at the time included talk that the Republicans were throwing away years of longstanding legislative practice, using their majority to confirm President Bush's nominees. Democrats were accused of partisan obstructionism. The 'nuclear option' wasn't about the judges that were being put forward then or their qualifications. Rather, it was against the setting of a precedent should vacancies arise on the Supreme Court.

If Rehnquist retires tomorrow from the high court, it would still be a rancorous and fierce confirmation hearing for his successor. But with O'Connor's seat to fill, it'll be just a little more contentious. Had Rehnquist retired, it would be accepted and expected that Bush would nominate another conservative to take his place. O'Connor however has been seen as a moderate, and the opposition will cry blue bloody murder if he appoints a conservative to take the moderate's place, thereby tilting the court in different direction.

O'Connor, the first female justice on the Supreme Court, though a conservative, was often a swing vote on contentious issues. In 1989, O'Connor did not join four of her colleagues who were set to reverse Roe vs. Wade, the landmark decision that stated that a woman had the constitutional right to an abortion. In 1992, she was pivotal in a five-justice majority that reaffirmed Roe vs. Wade. She also voted with the 5-4 majority that awarded the 2000 presidential race to George W. Bush. She was also crucial when the court voted to uphold affirmative action policies concerning college admissions.

The aspect of O'Connor's career that's been most scrutinised, and which will continue to be analysed, is her judicial reasoning on abortion. Whatever conservative credentials she may have held, she wrote in a judgement upholding Roe vs. Wade that legalised abortion was, "a rule of law and a component of liberty we cannot renounce."

It certainly will be interesting to view the whole nomination and confirmation process. Pessimists wonder if President Bush will placate Democrats and appoint a moderate, or if he'll bow to the Christian right and appoint a constructionist, who could possibly do away with a woman's right to choose. The temperament of the nation, seen in the divisiveness of the culture wars, is not something Bush has been known to heed. His straightforward demeanour has little room for compromise. He could easily appoint a staunch conservative to give something back to his right-wing base. Or he won't, conceivably because he's not running for re-election again, and he doesn't need the Christian right's support.

Alberto Gonzales, the Attorney General (A.G., the AG), is a possible nominee to replace O'Connor. His confirmation hearings for the cabinet post this year were quite contentious, so I wonder if they'll want to subject themselves to the same treatment again. Two other possibilities, Harvie Wilkinson and former solicitor general Ted Olson, have been rumoured to be ineligible as they're over 60. Gonzales is under 50 and has a lifetime in front of him, and a president likely wants to place his mark on the high court by appointing someone who would accomplish much. (O'Connor was 57 when she was elevated.)

Robert Novak, the noted columnist (noted, for outing Valerie Plame, the CIA operative), talked about the Gonzales trial balloon in a column filed before O'Connor's retirement announcement. Gonzales is a Bush friend, and it would be a great legacy for Bush to appoint a Hispanic to the Supreme Court. Novak noted that perhaps the Democrats had taken their shots at Gonzales already, at the confirmation hearing for the Attorney General's post. It's interesting to note the chatter this week from conservatives who decry the possibility of a Gonzales nomination, as he, Novak reports, "maintains Roe vs. Wade is inviolable." Bush's base has been riled up already at the thought of a Gonzales nomination. But at this point, Gonzales looks more palatable to Democrats then let's say, John Ashcroft.

What will also be interesting to watch is the rapid pace at which the forthcoming nomination and confirmation battle will take place. Bush intends to have his nominee on the bench when the court begins a new session the 'first Monday in October.' As well, it will be curious to see how Democrats will be perceived. There is a fine line for them to tread, as if they are strongly opposed to whoever Bush appoints, they will perhaps been seen as obstructionists, and that won't play well to voters during the 2006 midterm elections, and perhaps beyond.

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In writing about the Gonzales trial balloon in his syndicated column, Robert Novak used this rather delicious leader: "WASHINGTON - It was not merely a leak from the normally leak proof White House." Novak has been making news as of late for a leak he himself was privy to from the same Bush White House, that of the identity of CIA operative Valerie Plame, the wife of Joe Wilson, the ambassador who took the administration to task over WMD.

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