(L to R), Senate Judiciary Committee Chairman Sen. Arlen Specter, Senate Majority Leader Sen. Bill Frist, Supreme Court nominee John Roberts, and Assistant Majority Leader Sen. Mitch McConnell, July 20, 2005. (AP/Pablo Martinez Monsivais)
The debate is on. Whether it becomes a summer and fall brawl remains to be seen, but it seems less likely with the president's choice of Judge John Roberts to replace Sandra Day O'Connor on the Supreme Court. Judge Roberts has the support of conservatives and the respect of many liberals in the legal community. The nomination of Judge Roberts comes at a critical time with the current court split 5-4 on some of the most controversial issues of the day. Divided 5-4 against what this president and much of the American public believe.
On the present court, Chief Justice William Rehnquist, Justices Antonin Scalia and Clarence Thomas sit clearly on the conservative side of most issues. Both men are often mentioned as possible choices for chief justice. Moving to the center is Justice Anthony Kennedy. Sandra Day O'Conner, a Reagan appointee, became the pivotal center or swing vote on many close issues. Toward the more moderate to liberal side are Justices David Souter, John Paul Stevens, Ruth Bader Ginsberg and Stephen Breyer. Many of the most urgent social issues have been decided by this court by a single vote in 5-4 decisions. So a one vote shift in the court's balance could be decisive.
A case in point is the death penalty. In 1989 the Supreme Court ruled by a 5-4 decision that it was constitutional to execute 16 and 17 year old juveniles. This year that was overturned by the current court in another 5-4 decision. A one vote shift changed the law. This fall the new court will decide the constitutionality of the death penalty law in Kansas.
Another issue decided by a 5-4 decision that could be reversed by a single vote deals with abortion and reproductive rights. It is unlikely that the court will overturn Roe vs. Wade which observers believe has a 6-3 majority on the current court. But in its last major abortion decision, this current court ruled 5-4 to knock down a Nebraska law prohibiting partial birth abortions.
This fall the new court will take up parental notification or consent prior to performing an abortion on a minor which is the law in 44 states. Seven of the nine justices on the current court were appointed by Republican presidents. But the lifetime appointments sometimes bring unexpected surprises.
When President Eisenhower nominated Republican California Governor Earl Warren to be chief justice in 1953, few would have predicted, including a bitterly disappointed Eisenhower, that the Warren court would become one of the most liberal in history. But when President Reagan elevated Justice William Rehnquist to chief justice in 1986, he got what he bargained for -- a conservative chief justice and a conservative court.
Joining the panel to discuss the Roberts nomination and the upcoming battle are Melanie Kirkpatrick, associate editor of the editorial pages, who covers the Supreme Court, Kim Strassel, a senior writer for the editorial pages, and John Fund who writes for OpinionJournal.com and is closely following how the Senate handles the president's nomination.
"Everybody says John Roberts is a conservative, but what do we really know about his judicial philosophy? What about abortion? Is that likely to come up as an issue? It always does in these cases and before the Supreme Court, Roberts was a deputy solicitor general, whose job it is to argue cases before the Supreme Court."
"I think he's probably going to make a justice in the mold of Chief Justice Rehnquist for whom he clerked on the Supreme Court 25 years ago. Which is to say he'll probably be a careful constitutionalist and you won't see him making up law from the Court. That said, he's only been on the federal bench for two years and he's authored only about 40 opinions which are going to be scrutinized."
"We'll definitely have a fight about abortion. He has a pretty good excuse. He is going to say 'I was a hired lawyer for this, I had no choice. This was just my job to do it. It doesn't reflect my own opinions.' They may have a hard time getting him to say anything more about that because, as Ginsberg proved when she was in her hearings, one of the standard responses these days is 'I'm not going to talk about an issue that may come before the Supreme Court.'"
"The justices that have disappointed conservatives, David Souter and to some extent Anthony Kennedy, came directly from the bench -- they never had experience in practical real world politics. The justices that have tended to stay firm with their conservative principles, Rehnquist worked for Richard Nixon in the executive branch, Clarence Thomas worked for the first Bush Administration and Antonin Scalia worked for Reagan. Given that John Roberts comes from all that experience with Ronald Regan and George H.W. Bush they are very confident in them. "