Focus on the Family Action

All political eyes are on John Paul Stevens these days. For months, the 86-year-old Supreme Court Justice has been the subject of speculation. First, there were rumors of ill health. Then came surprising reports that the Court's longest-serving liberal wants to resign his seat while a Republican holds the White House, out of a sense of loyalty to the man who nominated him—the late President Gerald Ford. Current speculation is that a Stevens resignation could come this summer, after the Court has concluded its current term.

Even if a Stevens vacancy does not happen this year, the odds are that the next Supreme Court opening will result from a liberal vacating his or her seat. The average age of the four conservative jurists is 59, while the average age of the remaining justices is 73. Should one of the liberal seats open up while President Bush is still in office, the political battle for the ages would begin. After all, if one of the liberal justices were to be replaced with one who recognizes a constitutional duty to interpret rather than create the law, there is a strong chance that the 1973 Roe v. Wade decision could be overturned, sending control over abortion back to the states.

That reality has the Left apoplectic. As the Roberts and Alito confirmation battles revealed, most liberals view abortion as the one right that must be protected above all others—and that means holding on to the courts at all cost.

But many other critical matters are at stake as well. The definition of marriage, religious freedom, school choice, property rights and national security are among the many issues in which activist, left-leaning courts have held sway. While adding a fifth conservative to the Court wouldn't change things overnight, the eventual impact could be breathtaking. It's no wonder that the battle lines are drawn.

Will Bush deliver?

The first question regarding any Supreme Court vacancy is whether President Bush will deliver a solid nominee whom social conservatives can enthusiastically support.

His track record is encouraging, according to Michael Schwartz, a veteran court-watcher, pro-family leader and now chief of staff for Sen. Tom Coburn, R-Okla. “One of the strong elements of President Bush's time in office has been the quality of his judicial appointments, at least at the higher levels,” said Schwartz. “He has selected very well qualified people who have almost uniformly been worthy of the offices that they have been called to fill.”

But how will President Bush handle judicial appointments now that the Senate is in control of liberal Democrats like Hillary Clinton and Ted Kennedy? Again, pro-family leaders are encouraged with the preliminary indications. In November, just one week after Democrats took the Senate, President Bush renominated six appeals-court candidates whom Democrats blocked for being too conservative.

Bush's move was widely seen as a bold, confrontational move. “The president's sending the message that he's not going to deviate one iota from his judicial philosophy, which is that he's going to send up nominees who don't legislate from the bench,” said Jay Sekulow of the American Center for Law and Justice.

Bush also has several good options when it comes to Supreme Court nominees. Ed Whelan, a leading conservative commentator on judicial matters, said that one of the “compelling lessons of the Roberts and Alito confirmations [is] that quality counts—that is, pick a nominee of outstanding ability.”

According to Bruce Hausknecht, judicial analyst for Focus on the Family Action, Bush can still choose from a number of solid conservative nominees with outstanding legal pedigrees and acumen. “If the president finds someone like John Roberts out there—and there are those types of judges—they'll get through because you'll find some of the more moderate Democrats will be unwilling to join the liberals in blocking the nomination.”

In addition, the president still has the political advantage of being able to choose a woman or a minority, which would compound the pressure on Democrats to avoid obstruction.

Finally, the president could nominate a current or former U.S. Senator. While senatorial courtesy may not prevent the likes of Sen. Chuck Schumer, D-N.Y., from castigating a colleague, it would nonetheless be much more difficult for moderates of either party to participate in the lynching of a fellow senator.

Still, the president's pick for a Supreme Court vacancy will doubtless face bitter personal attacks. Can that person really survive the brass-knuckle tactics of Hillary and Company?

Good opportunities

To the surprise of some, many conservatives see an opportunity for a Democrat-controlled Senate to confirm a constitutionalist nominee. As evidence, they point to the 1991 confirmation of Clarence Thomas. At that time, Democrats not only controlled the Senate, but they actually held a commanding 57-43 majority, far larger than the current count of 51-49. Despite the controversial testimony of a former Thomas associate, Anita Hill, 11 Democrats voted to confirm Thomas.

Yet, others counter that the situation is far different today. Liberals understand that their control over the judiciary is slipping, which is why they have resorted to unprecedented tactics like the judicial filibuster. Indeed, in a National Review Online article, Byron York warned: “What would be completely clear, if Republicans have just 50 or 51 or 52 votes, is that they would not have the votes to stop a Democratic filibuster. Democrats would act accordingly.”

But would the Democrats filibuster a Supreme Court nominee? Some observers think it's not a sure thing.

“The justifications for the existence of the filibuster rest on defense of the minority party's rights,” Whelan said. “The filibuster, in other words, is a tool of the minority party. The partisan use of the filibuster by a majority party against a Supreme Court nominee is unprecedented, and for good reason. Senate Democrats would look ridiculous, would expose the tremendous rift between the Left of the party and their few moderates, and would demonstrate that they are a party not fit for governing if they were to resort to the filibuster.”

Hausknecht agrees with Whelan. “It's an oxymoron for the majority party to declare a filibuster.”

Leonard Leo of the Federalist Society told Citizen the public is now more engaged in the debate about the role of the courts. “A larger percentage of the public is embracing a philosophy of judicial restraint. And almost every senator on the Judiciary Committee today at least verbally acknowledges that judges need to play a restrained and somewhat deferential role in political branches.”

Leo said the courts have brought attention and scorn on themselves by issuing increasingly outlandish rulings on a variety of issues, from property rights to homosexual marriage to the Pledge of Allegiance. The public's opposition to such actions, added Leo, “has some impact on how vigorously both Republicans are going to defend nominees, and the degree to which the Democrats are going to voice objections to nominees because they don't embrace a more activist approach.”

One thing's for sure: There are powerful forces pushing in both directions. And the results of their struggle could shape America, for good or ill, for generations to come.

Paid for by Focus on the Family Action.