Cover Story

Momentous decision

President Bush deliberates on his most enduring choice in office; left and right arm for Supreme Court fight

Issue: "Supreme Court fight," July 23, 2005

It's been a busy few weeks for the White House. President George W. Bush attended the G-8 summit in the United Kingdom where Prime Minister Tony Blair argued for African debt relief before ducking out to attend to London in the wake of the terrorist bombings. Then there was a burgeoning White House scandal, placing strategist Karl Rove in an unwanted spotlight regarding a potentially criminal CIA leak.
On the political radar, none of that matters compared to the looming firestorm that will await President Bush's eventual nominee to the Supreme Court. With bitter politics on the horizon, both Republicans and Democrats seem ready to renew their fight over judicial philosophy put on hold earlier this year by a compromise deal forged by a bipartisan group of senators.
In the meantime, the President has met with Senate leaders from both sides of the aisle to discuss possible replacements. But the White House has had five years to prepare for this day. And though the outgoing justice is a surprise-many figured the cancer-ridden Chief Justice William Rehnquist would be first-it's hard to imagine that the president doesn't already know what he wants.
It's a lot for conservatives to think about. And they've had the time. Forty-two months into the Bush presidency and at least 13 days after Justice Sandra Day O'Connor announced her retirement, President Bush still did not have a replacement name. Washington's guessing game has been surpassed in conservative circles only by the persuasion game, as organizations and plugged-in Republicans try to convince or cajole the administration to alter its perceived list, and especially to eliminate Bush confidante and U.S. Attorney General Alberto Gonzales from consideration. Meanwhile, with much of the passion over the vacancy tinted by abortion politics, both the pro-abortion and pro-life movements are gearing up for their biggest fight since Roe v. Wade.
President Bush spent much of his time on the 2004 campaign trail promising to nominate judges in the mold of conservative Justices Antonin Scalia and Clarence Thomas. Many conservatives will be bitterly disappointed if they perceive Mr. Bush as breaking this promise. So why, conservatives have been asking, has Alberto Gonzales' name persisted as a top choice?
It's not for a lack of effort. President Bush chided conservative groups for questioning Mr. Gonzales' judicial philosophy and position on abortion soon after Justice O'Connor made her announcement. And though many conservatives have tempered their public criticism of Mr. Gonzales, the private prodding continues. "By far the biggest push is an anti-Gonzales push," one Republican Senate aide said. "But it's focused on the White House right now."
The conservatives' gripe with Mr. Gonzales is simple: While he is highly capable as the nation's top law enforcement officer, his ambiguous stand on judicial philosophy and abortion make him unpredictable for a lifetime appointment.
"If President Bush were to nominate Alberto Gonzales to the Supreme Court, I think that could turn out to be the equivalent to his father breaking the 'No New Taxes' pledge," said Mark W. Smith, a legal expert and author of the New York Times bestseller The Official Handbook of the Vast Right Wing Conspiracy. "I think it's that serious."
Serious, Mr. Smith said, because Republicans have such a poor track record picking judges. Seven of the current nine Supreme Court justices are Republican appointees, yet only three are solid and consistent conservatives. That means four times since the Nixon administration, Republican presidents nominated justices with conservative instincts who drifted left.
Many Republicans worry that Mr. Gonzales would drift left too. They point to his decision while a Texas Supreme Court Justice to join the majority striking down Texas' parental-notification abortion law. While that decision alone doesn't paint Mr. Gonzales as a Roe v. Wade supporter-Mr. Gonzales says he opposes abortion personally, but so does Justice O'Connor-it does nothing to assure conservatives that he would take a firm stance.
Conservatives also question whether Mr. Gonzales would apply a strict-constructionist interpretation to the Constitution-that is, would he judge according to the original intent of the law or would he allow his personal judgment to interpret the law? According to a transcript taken during a 2003 meeting by Dr. John Willke, president of the Life Issues Institute, and distributed in an e-mail by the conservative interest group Third Branch Coalition, conservatives have reason to worry. "The Constitution is what the Supreme Court says it is," Mr. Gonzales told Dr. Willke during a White House meeting after being asked about the constitutionality of abortion.
Todd Gaziano, director of the Center for Legal and Judicial Studies for the conservative Heritage Foundation, said finding a judge with a strict constructionist philosophy should be the top priority. "A lot on the right are too concerned on how a judge or justice would vote in a particular case rather than trying to determine whether the person adheres to a philosophy of judging that is true to a judge's legitimate role," said Mr. Gaziano, declining to comment on Mr. Gonzales' particular philosophy or that of any other potential candidate. "If someone is committed to that, then they're likely to get all sorts of cases right."
But it's abortion politics that has fueled the political firestorm surrounding the vacancy. And if legal experts are moving toward trying to affect President Bush's choice for the next justice, pro-life and pro-abortion groups have hit high gear. After Supreme Court Justice Sandra Day O'Connor announced her retirement, Eleanor Smeal, president of the Feminist Majority Foundation, was in the press declaring an "abortion rights emergency."
Over the July 4 weekend, she marched on the Tennessee state Capitol with other pro-abortion feminists, vowing to "raise such a loud voice that Senator Bill Frist hears it . . . [and] knows he cannot turn back the clock on women's rights."
On July 11, she was in Washington, D.C., illuminating reporters on the "little-understood and endangered link" between legalized abortion and legalized access to birth control for married persons-and by extension, the threat Justice O'Connor's retirement poses to women's employment, education, and family medical leave rights.
Such rhetoric shows no signs of slowing. Though Justice O'Connor's successor will likely shape and color the entire spectrum of constitutional law for decades to come, some liberal women's groups have narrowed the focus to abortion-and then funhouse-mirrored it back out again to nightmare proportions.
Consider the Summer 2005 Ms. magazine "Urgent Report," which asserts that if Roe were overturned and legal dominion over abortion reverted to the states, "next, the radical right would probably push for limiting the availability of contraceptives-first for teenagers, then for single women. Finally, they might try to withhold certain types of contraception from married women."
Meanwhile, conservative women's groups are making their voices heard on the importance of choosing a pro-life successor to Justice O'Connor, though in prose considerably less purple.
Georgette Forney, co-founder of the Silent No More Awareness (SNMA) campaign, a post-abortive support group, said she is urging SNMA's 3,000-plus members to share their abortion experiences when confronted with the debate over the importance of the new high-court nominee's position on the issue.
Had the court ruled differently on Roe, her own life might have been different, Ms. Forney said. "When I was driving to have my abortion I remember thinking, 'This feels wrong, but because it's legal it must be OK,'" she said. "Nine men decided it was OK for me to do something that I regret every day. Because all three branches of government seemed to be able to create laws that have long-lasting impacts on people-the selection of leadership is especially critical."
Caron Strong of Operation Outcry, a group of post-abortive women who regret their "choice," said in a statement last week that it's appropriate for the high court to revisit both Roe v. Wade and its companion case Doe v. Bolton. "Both victors in the landmark Roe and Doe cases recently told a congressional hearing they were used to achieve their attorneys' political agendas and their cases were based on deception and manipulation," she said. "It's time for America to know the truth . . . and hear from women who have reaped the consequences of killing their own children."
Would the President Bush who stood with pro-lifers on the stem-cell issue, the cloning issue, and the international family-planning issue suddenly leave religious conservatives at the door by picking a moderate nominee? Would religious conservatives, who felt they were promised a judge like Justices Scalia or Thomas, feel jilted if instead they got a justice who looked more like Justices O'Connor, Anthony Kennedy, or David Souter? Would the religious right take its ball and go home? "They've got to know that, if he were to [nominate Gonzales], it would really be devastating," Mr. Smith said.
Richard Land, President of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, said the stakes are crystal clear. "This Supreme Court nomination and any subsequent ones will do more to define George W. Bush's legacy than any other actions he will take," said Mr. Land, who would not comment on Mr. Gonzales or any other potential nominee. "If we don't get a strict constructionist who is going to assume the role of an umpire, then the chance of redressing the court's direction and getting it back within its boundaries in a generation is difficult."
Fail once and President Bush will be unsuccessful in changing the court's dynamic. Fail once more in eventually replacing Chief Justice William Rehnquist, and the president could cast the court backwards into the same 7-2 split that in 1973 produced the Roe v. Wade decision. -with reporting by Lynn Vincent

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