Will Balance of Power Shift at High Court?

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Justice Sandra Day O'Connor is leaving the Supreme Court, and Chief Justice William Rehnquist may also depart before the next session begins. Will new appointments alter what has been a narrowly divided court? Legal analysts Dahlia Lithwick and Emily Bazelon discuss the issues with Alex Chadwick.

ALEX CHADWICK, host:

And joining us now, Supreme Court experts Emily Bazelon and Dahlia Lithwick, both from our partners at the online magazine Slate. They are regular guests on Tuesday. And as it happens, we are all going back to work after the Fourth of July with a lot to think about the Supreme Court: Sandra Day O'Connor retiring and a lot of talk about replacements and who they may be. Dahlia and Emily, welcome back to the show.

DAHLIA LITHWICK reporting:

Thanks.

EMILY BAZELON reporting:

Thanks so much.

CHADWICK: Let me just begin here because Sandra Day O'Connor startled everybody on Friday with this announcement. Since then, there's been a lot of discussion about who might replace her. But if you looked back over recent court history, what is it that Sandra Day O'Connor has done that would fill so many with hope and fear at this point? Emily, let's begin with you, if we may.

BAZELON: Well, this term, Justice O'Connor cast an important vote in favor of taking down displays of the Ten Commandments in Kentucky. And if you go back a little further in her record, a couple of years ago she was the swing vote in the affirmative action cases at the University of Michigan. So she said that the law school affirmative action program, which counted diversity but was not a quota program, was acceptable, but that a more sort of numbers-based race preference program with the undergraduates admissions was not.

CHADWICK: Dahlia?

LITHWICK: I think, you know, to broaden it out even further, since 1995, the statistic is that O'Connor's been the deciding vote in 148 out of 193 close cases.

CHADWICK: Wow.

LITHWICK: So she's really been not just the swing vote, but because she's often authoring those opinions, her sort of gut check on what the law ought to be has really driven the rest of the court. Her opinions on affirmative action, as Emily said, are the opinions of the court. Her opinion on what is an undue burden in an abortion case is the opinion of the court. So she really has been, more than any other justice on the court, the one who's sort of drawing the fine lines and shaping the jurisprudence. With that gone, there's--a lot of that is going to come back on the table.

CHADWICK: Well, now Democrats are calling for the president to nominate someone who can bring the country together, and conservative Republicans want one of their own on the court. Where is President Bush in all this? And let's go back to you again, Emily, on that.

BAZELON: Well, that's the question of the moment. I mean, President Bush has put out, or people working for him have put out a short list that has on it a lot of hard-line conservative candidates and then Attorney General Alberto Gonzales, who at least on the issues of abortion and affirmative action, seems like he may be inclined to be more of a moderate if appointed. And so the big question is going to be, you know, where the president wants to take the court. Does he want the court to potentially turn to the right or is he, in fact, pretty satisfied with the status quo?

CHADWICK: There were questions on some of the Sunday talk shows, a debate which I'm sure we'll see more of in the coming days. Exactly what is permissible to ask a potential Supreme Court candidate? That is, when they hold these hearings, what exactly can you ask a candidate for the Supreme Court?

BAZELON: The fighting about that question has already begun. There isn't agreement on it. The question is going to be whether the president can nominate someone who wants to present him or herself as sort of, you know, a tabula rasa, a blank slate who hasn't thought about issues like abortion, as sort of implausible as that might sound. And that is not necessarily the way this questioning needs to go. Judges are not allowed to talk about pending or impending cases that are before them. But there's really very little to prevent them from talking about past decisions, either their own past decisions or the court's past decisions as long as they aren't specific enough so that they're sort of giving away how they would decide a future case that would come before them.

CHADWICK: This actually came up in the hearings for Justice Thomas when people asked about his views on abortion. And there were questions then about whether or not it's permissible to ask someone their opinion on a widely discussed public issue. But this is asking that opinion on someone who may have to rule on that. Dahlia, what is legitimate there?

LITHWICK: Well, it's always legitimate to ask. The sort of more pressing thing is, does the candidate have to answer? And it's become increasingly clear, as you said, Clarence Thomas got away with saying, `No, I never discussed Roe v. Wade, I don't have an opinion on it,' even though he was at Yale Law School at the time that it was handed down. So I think it's become increasingly part of this elaborate game where the questions are asked, and the nominees simply say, `I can't answer a question because this may come before me, and I don't want to look like I've prejudged it.' That's why this has become sort of a silly little game, that the confirmation process has become somewhat of a silly little game, because you can ask whatever questions you want, but you really shouldn't expect an answer anymore.

CHADWICK: Well, abortion's going to be a huge topic during the coming nomination process, and some commentators say that Republican politicians prefer the status quo because overturning Roe v. Wade could lead to a political backlash. Emily, what is the thinking there?

BAZELON: Well, the thinking there is that the status quo of having abortion as a federal constitutional right but some regulation of abortion actually suits the country's politics fairly well, and that if the Republicans push the court toward a court that would then actually overturn Roe and take away that federal right, that they would really suddenly open the floodgates to a lot of political opposition and a lot of mobilization on the part of women in particular, but people in general who don't want to see that right fully taken away. And so the idea is that that's not actually a scenario that the Republicans want to bring about for self-interested reasons.

CHADWICK: Dahlia, I actually saw President Bush quoted in an interview with a Danish journalist over the weekend saying that he doesn't think that the country agrees with his views on abortion. He's against it, but he says, you know, `I have to talk to the country because people just generally--they're not quite on my side on this.'

LITHWICK: You know, I think in the end of the day, Alex, this is a real testament to O'Connor's--not only her skills as a politician and as a moderate, but to the fact that she really was the one justice who was--you know, had a political background, was very much a politician and was very attuned to what the country wanted. She didn't operate in sort of a legal black box. And I think in some sense, she, more than President Bush, represented sort of the average American, you know, what the average person wants. And as Emily pointed out, what the average American wants most of the time is sort of the status quo, that even though these are muddled and hard-to-comprehend decisions on religion, on abortion, on affirmative action, they track pretty closely with what most of us want. I think that's a sort of tribute to O'Connor, is that she was quite sensitive to that and she represented that vote. And so putting in someone, I think, as Bush says, who is extreme in either direction would really sort of hijack the whole court away from this sort of centrism that O'Connor represented. And it was very, very palatable, by and large, to most of the country.

CHADWICK: Opinion and analysis from Dahlia Lithwick and Emily Bazelon. They are both legal analysts for our partners at the online magazine Slate and both regular guests here on DAY TO DAY.

Thank you both very much.

BAZELON: Thanks.

LITHWICK: Thanks, Alex.

(Soundbite of music)

CHADWICK: I'm Alex Chadwick. Stay with us on DAY TO DAY from NPR News.

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