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July 1, 2005



PAUL GIGOT: Welcome to THE JOURNAL EDITORIAL REPORT. The July Fourth weekend began with an announcement that will keep fireworks going for the rest of the summer. Justice Sandra Day O'Connor resigned from the court after 24 years, setting up a major battle in Washington over the composition and ideology of the Supreme Court. With me to discuss this are: Dan Henninger, columnist and deputy editor of the WALL STREET JOURNAL editorial pages, and John Fund of, who covers Congress and politics.

John, the president reacted on Friday to her resignation by saying, "Look, Senate, we need a dignified confirmation process. Fair hearing -- are we going to get something like that?

JOHN FUND: Paul, if there's anyone out there who thinks mud-wrestling is dignified, then we're going to have a dignified process. This is going to be ugly, and the reason is that Sandra Day O'Connor is one of two justices on the court who is viewed as a moderate or swing vote. And on a whole range of issues, people are going to say this could tilt the balance of the court one way or the other. Now, I think a lot of this is exaggerated. For example, on abortion, which is the big hot-button subject, Sandra Day O'Connor was part of a 6 to 3 majority that upheld Roe v. Wade in 1992.

PAUL GIGOT: The famous case in this decision.

JOHN FUND: Right, exactly. So that wouldn't be changed. What might be changed is partial birth abortion, which the court struck down a state law on five to four. But that's an 80 - 20 issue in this country. Eighty percent of the country is uncomfortable with partial birth abortion. So a lot of Sturm und Drang about this, but I'm not so sure the differences are that dramatic between O'Connor and any potential successor.

PAUL GIGOT: But certainly the argument that she's a swing vote is going to be heard, Dan, and I think on affirmative action, on church-state relations, on federalism, she has been that fifth vote for a lot of those decisions. This resignation means probably, does it not, a tougher fight than if the chief justice had resigned?

DAN HENNINGER: I think that's right. Sandra Day O'Connor in some ways represents what the Democrats keep calling somebody who's in the mainstream. Well, she was appointed a long time ago. And given the politics as it has evolved, it's really hard to be in the mainstream now. We have reached the point where there is a fundamental disagreement on judicial philosophy. This is the culmination of a sixty-year battle. It started in the 1940s when the idea rose that legislatures were not achieving justice, like in civil rights, that the court should do that. The courts did it across the broad canvas of American life. That's the democratic position. George Bush represents the position that this authority should revert to legislatures, that they should be setting social policy in the United States. It's a very fundamental philosophical disagreement that's represented in these judicial nominees now.

PAUL GIGOT: What about the fact that she was the first woman named to the court, and that creates an opening, if you think that there are seats reserved for women on the court. Will there be any pressure for the president to replace her with a woman? And are there a lot of Republican candidates, conservative candidates out there he could call upon?

DAN HENNINGER: Well, the short answer is yes, there will be pressure, and he could nominate Janice Brown, he could nominate Priscilla Owen -- two women who were just household names in the fight over the appellate judges -- Edith Jones of the Fifth Circuit. Having done that, we'll be back to the races because those women were opposed by the Democrats on philosophical grounds and because of their judicial philosophy. So once you get past the fact that they're a woman, it won't make any difference.

PAUL GIGOT: Any way to avoid a fight here, John?

JOHN FUND: Well yes. There was an agreement on whether or not judges should be filibustered a few weeks ago. Remember the 14 senators?

PAUL GIGOT: Sure, the extraordinary circumstances test, which was introduced.

JOHN FUND: Exactly.

PAUL GIGOT: Only filibuster under extraordinary circumstances, a very elastic phrase.

JOHN FUND: But not that elastic, because those 14 senators pledged that several nominees that had been opposed in the base's ideology would now go through. They obviously didn't represent extraordinary circumstances. And they pledged to enforce that agreement. They said if the Senate was filibustering a nominee outside of extraordinary circumstances, they would all vote to end the debate. Well, if that agreement means what it says, presumably you won't have the opposition to this nominee based on ideology, because I don't think that if you read the agreement thoroughly, that's in the agreement.

PAUL GIGOT: But certainly Republicans are going to try to define it that way, saying ideology is now off the table. And by ideology, we mean your view of the law on abortion, on issues, on cases. But what about -- so are you saying that if Democrats want to filibuster it's going to come down to personal qualities, or ethics, or something like that? And if that's true, then we are talking about a replay of some ugly confirmation fights from the past.

JOHN FUND: Because this is viewed as a swing justice position, I think that there will be a filibuster regardless of the circumstances, including ideology. And that is why Bill Frist may have to start talking again about the so-called nuclear option. In other words, if he thinks -- and he has agreement from several of the senators that were part of this agreement -- that this filibuster is invalid, well, we may be seeing him threaten to do that again.

PAUL GIGOT: What about Alberto Gonzales, the attorney general, a very close friend, loyal supporter of the president. Everything I hear says that the president would love to put him on the court to make him the first Hispanic justice of the United States, at some point, maybe not now. Would that be an easier confirmation fight?

DAN HENNINGER: In some respects, yes. But he would still get a lot of trouble over the so-called torture memos that he was razzed about when he was nominated for attorney general. In addition, the conservative base is not happy with Mr. Gonzales. They have sent as many signals as possible to the White House that they are not pleased with his record on the Texas Supreme Court and they view him as unreliable.

PAUL GIGOT: Well, and he also only got 60 votes for confirmation for attorney general, after pretty rough treatment. So that would tend to confirm your point, Dan, that anybody the president sends up is just going to be a tough ...

DAN HENNINGER: Well anybody who's paying any attention at all knows how divided our politics are now in Washington. And the Supreme Court is not going to be an exception. It will go right into the same threshing machine as Social Security or anything else.

PAUL GIGOT: Okay Dan. Thanks, we'll be watching. Next subject.