The Politics of Supreme Court Succession

The nomination of a new U.S. Supreme Court justice to replace the retiring Sandra Day O'Connor is perhaps the most anticipated political fight of the year. American law affecting abortion, affirmative action, the death penalty and other issues could turn on the new nominee. Madeleine Brand discusses the politics of Supreme Court succession with NPR senior correspondent Juan Williams.

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MADELEINE BRAND, host:

This is DAY TO DAY. I'm Madeleine Brand.

In a few minutes, we'll find out what the critics are saying about this week's movie releases.

But first, if you're just joining us, big news out of Washington today. Supreme Court Justice Sandra Day O'Connor is retiring. O'Connor was the first woman to serve on the court. In a short letter to President Bush, she said she expects to leave before the start of the court's next term in October. The president spoke this morning from the Rose Garden.

President GEORGE W. BUSH: This great lady, born in El Paso, Texas, rose above the obstacles of an earlier time and became one of the most admired Americans of our time. She leaves an outstanding record of service to the United States, and our nation is deeply grateful.

BRAND: The president then promised to nominate a successor with enough time to let the Senate vote before the term begins. Joining us to talk about this looming political battle is NPR senior correspondent Juan Williams, a regular Friday guest on DAY TO DAY.

And, Juan, this is the first vacancy on the court in 11 years. So how much of a battle can we expect?

JUAN WILLIAMS reporting:

You can expect a grand battle--I mean, fireworks. I know it's soon to be the Fourth of July, but this is going to set off a raft of acrimony, Madeleine, because it is so key. She is the swing vote on this court in terms of abortion rights, in terms of affirmative action. Of course she sided with the majority when you think back to the 2000 decision on the presidential election, but in many ways, even people who are supporters of abortion rights in this country say that she's a person who was more driven by reason than she was by partisanship. And a simple shift here, one vote or another, could make a difference in so many key cases.

BRAND: So we've just seen a bitter battle over appeals court nominations in the Senate, the threat to ban the filibuster by Republicans. Will the senators who brokered that truce--will they be able to maintain it with this nomination?

WILLIAMS: It's not clear, but it's clear that the Democrats will hold out the possibility of using the filibuster. And it's clear that Republicans will then respond that they have the so-called nuclear option at their hand. But what you really have here sort of before we get to that moment, which I guess is the way to bottom-line it, Madeleine, but before we get there, you have already the president's allies putting together a war chest of $18 million for a public relations attack on those who would try to diminish whoever the president decides to nominate. And on the side of the Democrats and people who might want to challenge the nominee's background, you have a virtual war room in place. They've already been sending out press releases and ads. People who were involved with President Clinton's campaign, his war-room effort, people including Carter Eskew and Joe Lockhart, those familiar names--they're all now primed and ready for this fight. And in an era when you're going to have, you know, 24-hour cable coverage of whoever the nominee is, when you have all the talk radio and you have the bloggers, this is really going to be a donnybrook.

BRAND: And what about the senators? Have they staked out any positions yet?

WILLIAMS: No, but what you have is a scheduling issue because, you know, the court term begins October 1, as you know. And what you have here is Senator Specter, the Republican from Pennsylvania, who has cancer by the way--that's going to be a subplot to all this, Madeleine--he's the head of the Judiciary Committee, and he says that he doesn't think the initial hearings will take place until at least a month, possibly even six weeks after President Bush nominates a successor. The president is going off on the G8 Summit, so he's not going to be back until about July 8th. I don't think you're going to see a nominee announced until somewhat mid- to late, probably late July. So that means August and September are the period when you're going to have these hearings take place. And it's going to be quite a fight.

BRAND: And Senator Specter is seen as a moderate on several judicial issues. Will that figure into this?

WILLIAMS: I think it does fit into it. You know, there was a big fight about whether or not he would get the chairmanship because he was seen as moderate and said there would be no litmus test and the like, and conservatives were concerned. And they still are concerned because some of the nominees, including, I think, the most likely nominee at this point, which would be the attorney general, Alberto Gonzales, are seen from the conservative side of things as not exactly trustworthy when it comes to abortion, when it comes to affirmative action. So you're going to see that there's going to be pressure on Specter to deliver, to make sure that the process is fair. Already conservative groups have run ads suggesting that the nominee must get fair treatment. And you heard, in fact, the president use that language in the Rose Garden today. He said fair treatment, fair consideration and a fair vote. So clearly, he's looking forward to a floor vote again in anticipation of the filibuster that you mentioned earlier, Madeleine.

But you get people like some--I just mentioned Emilio Garza, who's a judge on the 5th Circuit, who has already said, you know, that he questions the legitimacy of Roe v. Wade, says it's inimical to the Constitution. And you get folks like Sam Alito on the 3rd Circuit, you know, who said that he thought in the past that death penalty cases, abortion cases should be subject to state restrictions.

BRAND: Juan Williams, a senior correspondent for NPR.

Thank you very much, Juan.

WILLIAMS: You're welcome, Madeleine.

BRAND: More coming up on DAY TO DAY from NPR News.

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