Jewish World Review July 7, 2005/ 30 Sivan,
Eternal vigilance is the price
The Democrats in the Senate who must confirm a successor to
Sandra Day O'Connor have wasted no time in signaling that they're spoiling
for a fight, and no sooner had Justice O'Connor announced that she would
retire when a successor was confirmed note that she hasn't retired yet,
so technically there isn't yet a vacancy on the Supreme Court than NOW,
in convention assembled in Nashville, announced that it would march on
The only available place to march on in Nashville was the
Tennessee state Capitol. "This is our time," Kim Gandy, the president of
NOW, told her delegates. "This is our challenge." The delegates returned her
admonition with a memorable chant reprised from the Vietnam War: "Hell no,
we won't go." They were, presumably, not talking about not going back to
Saigon, but about not going back to the alley where the abortionists once
plied their grim trade.
"We're going to march on every capitol in the country," she
If we take her literally, someone should instruct Ms. Gandy on
how the system works: The U.S. Supreme Court, not usually confused with the
Tennessee Supreme Court, settles constitutional law, and the U.S. Supreme
Court sits not in Nashville, or Topeka or Sacramento, but in Washington. A
state capitol is about state law, and doesn't have anything to do with the
U.S. Supreme Court, or Roe v. Wade, on which abortion rights are based. Roe
is settled constitutional law. But you have to go with what you've got, and
we might as well resign ourselves to a fierce and bloody fight over who
succeeds Justice O'Connor. The Democrats obviously intend to oppose just
about anyone whom President Bush is likely to nominate to the Supreme Court.
Teddy Kennedy, whose harsh denunciation of Robert Bork in 1987
set the tone for modern confirmation hearings, predicts similar warfare this
time if the president insists on choosing his own nominee. Mr. Kennedy, who
may have been having a bad hair day, famously said of Robert Bork two
decades ago that if confirmed to the court he would reopen the back-alley
abortion mills and even restore racially segregated lunch counters. He's
speaking in similarly harsh language now. (Is the Fourteenth Amendment
"When the president sent Robert Bork to the Senate Judiciary
Committee for nomination [in 1987] . . . it was clear that he was selected
primarily because of his judicial philosophy," he said. " . . . Again, this
is up to the president. If he wants to pick a judge, we want to be able to
support him, but if he wants to have a fight about it, then that's going to
be the case."
Sen. Charles Schumer, his Democratic colleague from New York,
draws the challenge in stark terms. "I think the No. 1 thing I am interested
in is the nominee's views."
This describes something very close to the "litmus test" that
everyone, Democrat and Republican, insists that he or she would never, ever
impose, because justices of the Supreme Court are expected to apply the
Constitution, not their personal views, to the cases that come before them.
This, alas, may be a fatally naive view, circa 2005. Says Sen. Schumer: "It
would be wrong to put someone on the bench when you know nothing about their
views on civil rights, on women's rights, on environmental rights and on
We're a stronger America now that Jews, blacks and women are
seated on the court, and a better America now that such appointments are no
more than commonplace. No doubt soon there will be someone of Hispanic
origin on the court, and that's good, too.
But we've come a long way, baby, since Ronald Reagan rocked the republic with the appointment of Justice O'Connor as the first woman on the court. The sky didn't fall, and it wouldn't fall now if the Senate screws up the courage to confirm a Supreme Court justice on the basis of professional qualifications, and not raw sexual, racial and partisan politics.
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