Justice Sandra Day O’Connor has announced her resignation but will stay until a replacement is found. It will be a disputatious summer in Washington, DC, as President George Bush searches for a nomination to fill the Supreme Court seat that she vacates.
The choice of Justice O’Connor’s successor is seen as crucial to both the conservative right and to liberals and women’s groups because it will affect the future composition of the court. Justice O’Connor is a centrist, who has voted with both liberal and conservative members of the nine member court in “swing vote” five to four decisions. She has been the deciding vote in decisions in favour of abortion rights, civil rights, environmental issues, affirmative action, voting rights, and the government’s neutrality toward religion.
Abortion was legalised by the Supreme Court’s Roe v Wade decision in 1973. If Roe v Wade were over-ruled by a newly conservative court, abortion rules would be left to the 50 states. Polls have shown that most US citizens want abortion to remain legal, but many support restrictions.
Justice O’Connor has largely supported a woman’s right to choose on the issue of abortion, although she has voted in favor of restrictions on abortion so long as they do not place an “undue burden” on women.
She was nominated to the court by President Ronald Reagan, who was pressed to appoint the first woman and sought a fellow conservative. Ruth Ginsburg is the only other woman in the court, and there is one black judge, Clarence Thomas. Mr Bush is under pressure to appoint a Hispanic judge to the court. Mr Bush has said he hopes to have a new judge by 1 October, when the new court term begins. Justices are appointed by the president and must be confirmed by the Senate after hearings by the Senate Judiciary Committee. They serve for life or until they resign. In the past, there have been lengthy, bitter battles over nominees.
Cases that will soon come up before the court involve limits on abortion; assisted suicide; right to die issues, such as the Terri Schiavo case; and gay rights. The federal law banning “partial birth abortion” is moving toward the Supreme Court. Lower courts have prevented its enforcement because it does not have an exception to protect the health (including mental health) of the woman.
The conservative chief justice, William Rehnquist, who is being treated for thyroid cancer, is rumoured to be resigning soon, which will give Mr Bush the opportunity to appoint two new justices. Several other justices are elderly and might resign. Mr Bush’s appointments may make the court more conservative. Republicans would then control all three branches of government—the executive (the presidency), Congress, and the Supreme Court.
Democrats, the minority party, have been critical of the court since it decided the disputed 2000 election in favour of Mr Bush, with Justice O’Connor the “swing vote” giving the election to Bush. Nevertheless, they hope he will nominate a centrist in the mould of Justice O’Connor. Mr Bush told the New York Times that he would not apply a “litmus test” for nominees on questions such as abortion and same sex marriage, both of which he opposes (7 July, p A1).
The American Civil Liberties Union, Planned Parenthood, and the Center for Reproductive Rights, among other organisations, say that Justice O’Connor’s resignation places reproductive and civil rights in jeopardy.
Conservative groups such as the Family Resource Center, National Right to Life Committee, and right wing Christian organisations say that Justice O’Connor’s resignation gives Mr Bush a chance to fulfill his campaign promise to appoint a justice who will reverse rulings that are regarded as the courts making law.
The United States Conference of Catholic Bishops asked Bush to “support the protection of human life from conception to natural death, especially of those who are unborn, disabled, or terminally ill.” Groups on both sides are starting television, radio, postal, and email campaigns.