San Diego Union Tribune

July 2, 2005

ANALYSIS
Stakes high on abortion, other issues

By George E. Condon Jr.
COPLEY NEWS SERVICE

WASHINGTON – President Bush hasn't even picked a replacement for retiring Justice Sandra Day O'Connor, but liberals and conservatives are already gearing up for a pitched battle over his nominee.

The Senate confirmation proceedings will be but one point of the conflict, albeit the most important one. The combatants are planning campaign-style tactics never before associated with the nomination of a Supreme Court justice, replete with political "war rooms" and TV ads.

The campaigns almost certainly will be directed at those relatively few senators that both sides believe may hold the key votes to confirm or deny Bush's nominee.

The stakes are especially high because Bush will be replacing a justice who was the decisive vote on many volatile issues.

"This will be the political equivalent of the war of the worlds," said Marshall Wittmann, a former Christian Coalition strategist who now works for the centrist Democratic Leadership Council. "The e-mails are already flowing from both sides today. . . . This is the one everybody's been waiting for. This is the end-of-all-times battle."

The anticipated clash reflects the ongoing cultural war that played out in last year's presidential election. Some of the legal – and moral – issues expected to come before the high court are those that tend to divide the nation: capital punishment, doctor-assisted suicide, same-sex marriage.

But the dynamic is mostly driven by one issue: abortion.

Liberals and conservatives argue over whether O'Connor's replacement could tip the balance and overturn the landmark 1973 decision in Roe v. Wade that established a woman's constitutional right to have an abortion.

Liberals are insisting that any nominee must answer questions about how he or she would vote on abortion issues, instead of refusing, as all past appointees have done, to offer opinions on matters that may come before the court.

Ironically, they will have support from conservatives on this point. Many are still angry over President George H.W. Bush's 1990 nomination of David H. Souter. To critics, he came to be known as a "stealth" nominee who talked like a conservative but voted like a moderate.

"The right has been annoyed for the last decade about the selection of Souter, and they don't want anyone who isn't clearly in favor of the conservative agenda," Wittmann said.

Doug Kmiec, who worked in the Justice Department for Presidents Ronald Reagan and George H.W. Bush, said ideological passions have been ignited because O'Connor was the key vote on so many issues.

"O'Connor has shaped the jurisprudence of the court for the last decade," said Kmiec, now a constitutional law professor at Pepperdine University. "It is really her thinking that has dominated in the areas of abortion, death penalty, race, freedom of association and questions of gender equality."

By contrast, William Rehnquist, the ailing chief justice whose retirement is still widely anticipated, was reliably conservative and predictable.

"Replacing him with another conservative would mean less to the future direction of the court than replacing a justice who can go either way," Kmiec said.

O'Connor has backed the essential protections of Roe v. Wade but supported giving states more power to regulate abortion procedures. Abortion rights activists suggest her replacement will play a pivotal role.

"Reproductive rights are in critical trouble," said Nancy Northrup, president of the Center for Reproductive Rights.

Eleanor Smeal of the Feminist Majority said the end of abortion rights is only "one vote away."

But conservatives insist this appointment will not change things.

"It's important for people to understand that even with Justice O'Connor's resignation there are, unfortunately, still five justices on the court that support Roe v. Wade," said Clarke D. Forsythe of the anti-abortion group Americans United for Life.

Wendy Long, counsel to the conservative Judicial Confirmation Network, contended that O'Connor's "absence from the court does not affect the future of Roe itself," but added that her replacement could move the court toward "reasonable regulations of abortion such as bans on partial birth abortion."

Which view prevails will be crucial.

Americans overwhelmingly support the basic right to abortion. But they are less likely to be moved to opposition if they think a new justice will mean only "reasonable regulations" of abortion rather than the elimination of what has been a constitutional right for three decades.

Politics have been deeply involved in Supreme Court nominations throughout U.S. history, with 32 of the 148 appointees failing to get out of the Senate. Even George Washington watched helplessly as his nominee for chief justice, John Rutledge, was voted down because he had angered many senators on an unrelated matters.

But this battle already looks different, even from the modern day confirmation disputes over Robert Bork and Clarence Thomas.

Conservative activists are demanding that senators make no compromise of any kind and have already launched a multimillion-dollar TV campaign to discredit the motives and views of liberals. Liberal groups will be almost as free-spending, but may largely hold their fire until Bush announces his choice for the lifetime post.

Kmiec is repulsed by what he says the process has become: "a sound-bites-and-bumper-sticker campaign."

"That obviously distorts the personality and the record of the person being considered," he said.

He added that this "demonizes these individuals in a way that is very unfair to a lifetime of public service or to any thinking person."

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