All eyes on court nominee
Tuesday, 20 September 2005
The Courier Mail
THE recent retirement of United States Supreme Court Justice Sandra Day
O'Connor and the subsequent death of Chief Justice William Rehnquist
have presented President George W. Bush with two of the most important
decisions of his presidency.
The President has a historic opportunity to shape the composition of the
court and an institution at the heart of American democracy for decades
to come. The moment should not be underestimated.
At a time when the ideological fault lines have opened up across the
American landscape, particularly over the role of religion in society,
the US Supreme Court is being called upon to adjudicate some of the most
contentious issues of the day.
Cases involving abortion, doctor-assisted suicide, capital punishment
and affirmative action are just some of those being cited.
There is also a vigorous debate about states' rights, the power of US
Congress to regulate interstate trade and commerce and the division
between church and state creating difficult constitutional questions for
the court to resolve.
As the final court of appeal, the implications of each decision taken by
the court are felt far and wide.
The court is never far from the political action. Chief Justice
Rehnquist presided over the Clinton impeachment hearings and during the
2000 Bush-Gore presidential race, the Supreme Court by a bare majority
stopped the manual recount of the votes in Florida.
The fact that prior to these two vacancies the court was so delicately
balanced has ensured the President's nominees are of even greater
Between 1994 and 2003 the court was split 5-4 on 175 cases and O'Connor
was in the majority 135 times and Rehnquist was in the majority 111
While Rehnquist invariably formed part of the conservative grouping on
the court, O'Connor was more unpredictable.
Despite being a Reagan appointment and with a history in Republican
Party politics, this first female justice of the court was often the
"swinging" vote deciding the outcome of a case one way or the other.
For example, while she supported some restrictions on the use of
abortions she argued against outlawing the practice as established in
the landmark 1973 case of Roe v Wade.
So, too, on affirmative action, while being against the imposition of
race quotas she held in favour of those who cited race as a factor in
their decision-making process.
To date, Bush has only nominated one of his two court appointments.
Choosing 50-year-old Appeals Court judge John Roberts to become the next
chief justice is viewed as a clever strategic choice as he seems to
have had the right combination of advocacy, government and judicial
Barring Roberts's ill-health, his age affords the President the
opportunity of shaping the leadership of the court for at least a
quarter of a century.
Roberts also understands the nuances of the Supreme Court, having
previously argued 39 cases before its bench and been a one-time clerk to
During the US Senate confirmation hearings, Roberts has been at pains to
stress his impartiality. He said: "I come before the committee with no
agenda" and suggested that in judicial decision making "you don't look
to your own values and beliefs".
However, such statements alone do not win over sceptical Democrats such
as New York Senator Charles Schumer, who is one of many forensically
examining Roberts's previous work fully aware of the legal and by
extension cultural and political consequences of the court's decisions.
Schumer said of Roberts that "we have seen maybe 10 per cent of you,
just the visible tip of the iceberg. And we all know that it is the ice
beneath the surface that can sink the ship".
During the confirmation hearings Roberts has given the impression he
would act in accordance with the court's precedent on abortion rights
referring to "settled expectations" with the American public.
However, he has been reluctant to detail his position on the other
contentious issues, bringing back memories of Justice Ruth Bader
Ginsburg's confirmation hearings in 1993 when she said "no hints, no
forecasts, no previews".
THIS highlights the inherent difficulty in the confirmation process,
predicting the behaviour of the judicial nominees.
As O'Connor's record illustrates, once on the court judges take
decisions that do not necessarily correspond with their previous views
Nor can one always predict the issues that in time the court will be
called upon to hear.
Just as the Internet and measures taken in the war on terrorism were a
distant reality at the time of O'Connor's appointment in 1981, so, too,
are probable developments in biotechnology and genetic engineering that
are bound to raise complex issues for a future Roberts court.
In the meantime, many Americans await the confirmation of their next
chief justice, a man whose influence will permeate their lives for years
Josh Frydenberg is a former senior adviser and speechwriter to Prime
Minister John Howard and is now attending the Kennedy School of
Government at Harvard University
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