Why We Should Care Very Much About Supreme Court Judge Selections

Will women pay a huge price with President George Bush's nominations for the Supreme Court? Maybe. Maybe not. Supreme Court judges have proven to be highly unpredictable regardless of their political affiliation.

by Annabelle Robertson

October 1, 2005

I t's been 11 years since the last vacancy on our nation's highest judiciary body - the longest the Supreme Court has ever sat unchanged since the 1820's. Now, the loss of not one but two justices have given President Bush the enormous opportunity to leave a legacy that could impact the country for decades.

According to the Constitution, which guides appointments to the Supreme Court, justices serve "for good behavior." This means that, once sworn in, a Supreme Court justice may serve for as long as he or she desires. Nominations, therefore, are one of the most significant ways a president can leave his mark.

Although at least one empty seat on the court had long been anticipated, the first came from Justice Sandra Day O'Connor, 75, who unexpectedly resigned this summer. Then, before O'Connor's replacement could be confirmed, the ailing William Rehnquist, 80, died in early September from thyroid cancer. Bush quickly moved to have John Roberts, who he'd nominated as O'Connor's replacement, replace Rehnquist as chief justice instead.

As Roberts' Senate confirmation hearings got underway in mid-September just 10 days after Rehnquist's death, Bush had yet to announce his second nomination. But the potential for a serious shift in the court's politics cannot be overlooked.

In the decade since President Clinton appointed Justice Stephen G. Breyer in August of 1994, both Republicans and Democrats - as well as a multitude of activist groups - have had ample time to prepare for Roberts' confirmation hearings. A federal judge since 2003 on the U.S. Court of Appeals for the District of Columbia circuit, long considered the second most influential judicial body in the country, the Roman Catholic Roberts clerked for Rehnquist for two years after graduating from Harvard Law School in1979, then joined the staff of the U.S. attorney general. He served as associate counsel to President Reagan and, after several years in private practice, was appointed principal deputy solicitor general for the U.S. Department of Justice, where he served from 1989 to 1993.

Bush recently called the selection of a Supreme Court justice "one of the most consequential decisions a president makes." He has said that he respects justices like Antonin Scalia and Clarence Thomas, both staunch conservatives. Roberts' nomination thus came as a relief to those who feared the nomination of Attorney General Alberto Gonzalez. Although Gonzalez would have been the first Hispanic to ever be nominated to the court under an administration that is keen on appointing minorities, conservatives dislike Gonzalez's record on abortion and affirmation action.

Roberts, on the other hand, has a past that points to at least moderate conservatism. More importantly, say many, this federal judge has an extremely high regard for the law and has consistently shunned the increasingly common practice of legislating from the bench.

"Unelected judges have made a mockery of Congress," says Georgia Senator Nancy Schaefer (R-Turnerville). "Look at the probate judge in Florida who paid absolutely no attention to a Congressional subpoena and arrogantly stood in the wings while all of America and the rest of the world watched an innocent woman starved and dehydrated to death. It is my prayer that Judge Roberts is a true Constitutionalist and that he will uphold the principles of the Constitution and help restore integrity to the courts."

U.S. Senator Saxby Chambliss (R-GA) believes that Roberts will do just that. "Through his many years of public service, Judge Roberts has demonstrated his faithfulness to uphold the Constitution and the rule of law," Chambliss says. "Because a Supreme Court Justice serves a lifetime appointment, it's critical that this vacancy, and all future vacancies, be filled with individuals who will strictly interpret the United States Constitution and not legislate from the federal bench. I am confident that President Bush selected Roberts because of his proven track record of applying the law as written and not making policy from the bench."

Nevertheless, with just two women (O'Connor and Ruth Bader Ginsburg) and two African-Americans (Thomas and Thurgood Marshall, appointed by Lyndon Johnson in 1967) who have ever served on the court - and no Hispanics or Asian-Americans whatsoever - the nomination of a white male came as a surprise to many.

"I'm disappointed that our president did not have the wherewithal to choose a woman to replace a woman," says Georgia Senator Gloria Butler (D-Stone Mountain). "That open seat represents one less woman on the courts, one less woman to speak out and advocate for women, and one less woman to advocate for voting rights, affirmative action and reproductive choice."

Butler says she hopes Roberts' nomination will not go forward. "He's a man with wrong thinking. We need someone who supports issues for all people," she insists. "I don't know a lot about him, but according to the things I've read and heard, he favors issues that are important to him."

Georgia Senator Steen Miles (D-Decatur) has a more nuanced point of view. "I don't think that one ought to replace a woman with a woman or a black with a black or a white male with a white male - but I do think that if all things were equal, and they are not, we would try and maintain balance," she says. "The Court, as in any other body, ought to ideally reflect the populace, and women make up a significant part of our population. Women also have a level of sensitivity and fair play that I think is certainly very beneficial to the process."

Professor Robert Schapiro, a federal law specialist who teaches at Emory University, cautions that experiences are not necessarily gender specific. "When the Family Medical Leave Act came before the Supreme Court," he says, "Rehnquist voted in support of the law, joining O'Connor, Ginsburg and the others, and it has been speculated that through watching his daughter raise a child, the problems of parental leave and the need for assistance became more acute to him. This, perhaps, led him to understand the significance of that statute. Life experience can influence how issues come before the court."

Nevertheless, many would still like to see a woman nominated for the court's second vacancy. Fortunately, there are plenty of qualified candidates to choose from. Among those reportedly on the shortlist are Edith Clement, Edith H. Jones and Janice Brown. Clement, a judge on the 5th U.S. Circuit Court of Appeals in New Orleans and a graduate of the University of Alabama, has served since 1991. Jones, a fellow judge on the same court since the age of 36, is a staunch conservative who twice became a finalist for the two Supreme Court seats that eventually went to Souter and Thomas.

Many hope that Bush's next nominee will be Brown, however. The African-American daughter of an Alabama sharecropper, she currently serves on the U.S. Court of Appeals for the District of Columbia and is extremely outspoken. Brown is also said to be deeply religious.

Stealth Nominee?
Roberts has argued 39 cases before the Supreme Court, but his judicial record offers little insight into the way he will vote. If history is any indicator, however, Bush could be facing some surprises. After all, four of the last six justices appointed to the court by Republicans - Stevens, O'Connor, Anthony Kennedy and David Souter -have regularly sided with liberal rather than conservative justices. In fact, only one recent Supreme Court justice nominated by a Democrat - Byron R. "Whizzer" White, a college and NFL football star nominated by John F. Kennedy- has ever offered a surprise opinion. In White's case, however, the vote was significant. He was one of only two dissents, along with Rehnquist, in Roe v. Wade.


"Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever," insists political pundit Ann Coulter, in a recent column that highlights the fears of many conservatives. "It means absolutely nothing that NARAL and Planned Parenthood attack (Roberts). They also attacked Sandra Day O'Connor, Anthony Kennedy and David Hackett Souter. The only way a Supreme Court nominee could win the approval of NARAL and Planned Parenthod would be to actually perform an abortion during his confirmation hearing, live, on camera, and preferably a partialbirth one."

After Earl Warren, President Dwight D. "Ike" Eisenhower's Republican nomination rival, dropped out of the presidential race and supported Eisenhower, the president selected Warren as chief justice in 1953. Warren's liberal bent soon became evident, however. He tipped the balance of the court in favor of civil rights and the reform of racially discriminatory state criminal justice systems. He also joined the court's declaration that racial segregation was unconstitutional. Eisenhower was widely quoted as saying that the appointment had been "the biggest damn-fool mistake" he had ever made.

Souter was the first justice to be labeled a "stealth" nominee. After being selected by President George H.W. Bush, Souter has consistently voted with liberal justices, expressing opinions that outrage conservatives. He has voted in favor of gay rights and multiple times in favor of the right to an abortion. In political parlance, therefore, the term "to Souter" now means to nominate a Supreme Court candidate without knowing much about him.

It may well be O'Conner, however, who has been the biggest disappointment to the G.O.P.

Nominated by the ultra-conservative President Reagan, O'Connor was viewed as a no-nonsense jurist who would vote much like Rehnquist, her Stanford classmate. Soon, however, the lone female justice had veered to the left and become the swing vote in countless 5-4 decisions. In 1983, for example, she dissented from her liberal colleagues who struck down local abortion restrictions, stating that Roe v. Wade was "on a collision court with itself" because technology was increasing the viability of the human fetus. Yet just nine years later, O'Connor was the fifth of six justices to affirm that abortion was a constitutional right, calling it Roe's "essential holding." In 2000, she even cast the decisive vote in a case that struck down state laws banning partial-birth abortion.

Of course, O'Connor also offered a rare dissent in the inflammatory Kelo v. New London, which extended government's right to seize private property for public "benefit" rather than the hitherto restriction of public "use."

Nevertheless, with a second nomination to announce, several more justices nearing retirement and more than three years before the end of his presidential term, Bush certainly has ample opportunity to appoint a woman to the court. Few would disagree that the time is ripe.

"In political parlance, therefore, the term "to Souter" now means to nominate a Supreme Court candidate without knowing much about him."