Abortion Fight Awaits Shifting Supreme Court
JENNIFER LUDDEN, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Jennifer Ludden.
There's no doubt that Sandra Day O'Connor was the most decisive voice on the Supreme Court over the past decade. Just look at the numbers. During the 11 terms this court sat together, there were 192 5-to-4 decisions. O'Connor voted with the majority 77 percent of the time. That's more than any other justice. What that means, of course, is that her resignation hands President Bush a real opportunity to move the direction of the court, but it also raises the prospect of bitter conflict. Yesterday, the president described a collegial process for selecting O'Connor's replacement.
President GEORGE W. BUSH: I have directed my staff in cooperation with the Department of Justice to compile information and recommend for my review potential nominees who meet a high standard of legalability, judgment and integrity and who will faithful interpret the Constitution and laws of our country. As well, I will continue to consult as well as my advisers with members of the United States Senate. The nation deserves and I will select a Supreme Court justice that Americans can be proud of.
LUDDEN: Senator Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee said he's please with the president's approach. He urged Mr. Bush to nominate someone who can unite the country.
Senator PATRICK LEAHY (Democrat, Vermont): I very much appreciate the fact that he wants to consult with both Republicans and Democrats. I hope it'd be possible to get somebody like that. The American people would be the winners then.
LUDDEN: The consolatory words now don't rule out a difficult fight ahead. Front and center among the issues surrounding any nominee is abortion, and as NPR's Julie Rovner reports, groups on both sides of that issue are already girding for the battle to come.
Unidentified Woman: What do we want?
Group: (In unison) Choice!
Unidentified Woman: When do we want it?
Group: (In unison) Now!
Unidentified Woman: What do we want?
JULIE ROVNER reporting:
Less than two hours after Sandra Day O'Connor's resignation from the court was announced, two dozen members of Planned Parenthood showed up on the steps of the Supreme Court. Plaid and pink T-shirts topped by ersatz judicial robs and waving signs that said `Save Roe.' That would be Roe vs. Wade, a landmark 1973 Supreme Court ruling that legalized abortion nationwide.
O'Connor's resignation puts the fate of abortion restrictions if not the legality of abortion itself front and center says Emory Law School Professor David Garrow.
Professor DAVID GARROW (Emory Law School): This puts the whole question of abortion rights in play more than any other possible Supreme Court vacancy could. Justice O'Connor has been the decisive protector of abortion rights since 1989.
ROVNER: Which came as something of a surprise says Garrow given that O'Connor was appointed to the court by Ronald Reagan and in the early and mid-1980s was a reliable vote for imposing restrictions on the procedure, but that changed in the 1989 case Webster vs. Reproductive Health Services of Missouri.
Prof. GARROW: Abortion opponents were extremely disappointed and surprise in 1989 when she refused to give Chief Justice Rehnquist the fifth vote to pull the rug out from under Roe v. Wade and then were even more greatly disappointed in 1992 when O'Connor along with Justice David Souter and Justice Anthony Kennedy vociferously reaffirmed Roe v. Wade in Planned Parenthood v. Casey.
ROVNER: For abortion opponents, O'Connor's departure is far more significant than the rumored resignation of Chief Justice Rehnquist who was a reliable anti-abortion vote. For example, O'Connor was the pivotal fifth vote to strike down Nebraska's ban on so-called partial-birth abortions five years ago. That means her replacement could uphold a similar federal law now working its way through the federal court system. Tony Perkins, president of the Family Research Council, says his forces are poised and ready to make that a reality.
Mr. TONY PERKINS (President, Family Research Council): And we in the conservative movement have waited over a decade for this moment in time to see a philosophical shift of the court and we will cease this opportunity.
ROVNER: Indeed, assuming the president nominates someone conservatives support, Perkins says his group is prepared to pull out all the stops.
Mr. PERKINS: We will be mobilizing over 20,000 churches across the nation through a variety of means. We are in communication daily with over a million people on our Web site. We have brought on new staff just for this battle that is pending.
ROVNER: Abortion rights backers are equally prepared says Nancy Keenan, president of NARAL Pro-Choice America.
Ms. NANCY KEENAN (President, NARAL Pro-Choice America): We have had two million direct e-mails that went out to supporters and then, of course, we have ads already up on the Internet to have our friends and our colleagues across the country and our activists to make sure that they contact their senators and make sure that a moderate is chosen and that a woman's reproductive choice is protected.
ROVNER: Ironically, both sides agree on one candidate said to be on the president's short list, Attorney General Alberto Gonzales. Except what they agree on is that they don't want him. NARAL's Nancy Keenan says that even the politically moderate Gonzales would be unacceptable to her side.
Ms. KEENAN: Well, Gonzales has spoken against Roe and so he would not be one that we could support.
ROVNER: And Perkins of the Family Research Council said a Gonzales nomination wouldn't motivate many conservatives.
Mr. PERKINS: Our opinion, our position on Attorney General Gonzales is that he holds great promises in attorney general.
ROVNER: Given the level of emotion around the abortion issue, whoever the president nominates is bound to make at least one side furious.
Julie Rovner, NPR News, Washington.