President Bush has made clear that he intends to nominate a conservative to fill Justice Sandra Day O’Connor’s pivotal seat on the Supreme Court. That is hardly a surprise, but the question is what he means by conservative. Some of the president’s supporters on the far right really want him to name a radical ideologue who would work to upend well-established legal doctrines and take away basic rights that Americans have come to cherish. The Senate must work hard to ensure that this does not happen.
The decision about who will succeed O’Connor is one of the most important that will be made in Washington in many years. As a centrist on a sharply divided Supreme Court, her views on contentious social issues, from abortion to civil rights to campaign finance reform, frequently became the law of the land. Her successor is likely to be just as powerful.
Far-right activists are pressuring Bush to choose an extremist. Their choice of language shows just how out of touch they are with the nation’s sensible center. They proudly proclaim that they do not want a consensus candidate, or a pragmatist. And they live in fear of a nominee who shows any capacity to grow on the bench — a quality any judge or justice should have. These activists claim that last year’s election was a mandate for Bush to choose a far-right justice. But judicial nominations were hardly mentioned in the campaign. Polls make clear that the majority of Americans are far more in step with a centrist like O’Connor than an extremist.
The far right’s agenda for the court is a frightening one. Activists want a justice who will radically reinterpret the Commerce Clause and other parts of the Constitution to tie Congress’ hands, so it no longer has the power to protect people from discrimination, unsafe working conditions and pollution. They want to obliterate the constitutional right to privacy, which is the basis not only for the right to abortion, but also for such elemental protections as the right to buy contraception.
Americans overwhelmingly see the Supreme Court as the protector of their rights, and as a check on the other two branches of government. They want justices who are independent and who are committed to a robust reading of the Bill of Rights and the rest of the Constitution. They see the court as too important to be turned into an ideological tool to take the country backward.
As the Constitution makes clear, the Senate has a vital role to play. In giving their advice, senators should be pressing the president to choose a candidate who reflects the philosophy of the vast majority of Americans. Before providing consent, they have a duty to hold extensive hearings that carefully explore the nominee’s background and views. Questions about a nominee’s positions on substantive areas of the law are not only acceptable, they are necessary to making an informed decision.
It is troubling that a few senators have begun to say in advance that they would support particular candidates if they are nominated. This kind of rush to judgment is irresponsible. Careful review of a nominee’s record and probing confirmation hearings are integral parts of the Senate’s role. Supreme Court justices are the guardians of the nation’s liberties, and they are appointed for life. The burden is on nominees, and it is a heavy one, to prove to the Senate and the American people that they deserve that awesome responsibility.
