Court battle will shape America’s future

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - The long-awaited battle now begins.

With the announcement Friday that Sandra Day O’Connor is retiring, the pent-up expectations will be fulfilled: This capital city and the nation are headed for a defining ideological struggle over the Supreme Court.

At stake is Bush's ability to keep his campaign pledge (made both in 2000 and 2004) to move the court in a more conservative direction.

If history is any guide, Bush is likely to get his nominee confirmed: Eighty percent of all Supreme Court nominees have been approved by the Senate.

But Senate Democrats and liberal advocacy groups immediately fired a warning shot across the president’s bow.

Sen. Edward Kennedy, D-Mass., and Sen. Chris Dodd, D-Conn., indicated that if the person Bush nominates to replace O’Connor does not resemble her ideologically, the Democrats reserve the right to use extended debate — the filibuster — to block the nominee from ever getting a confirmation vote.

“If the president abuses his power and nominates someone who threatens to roll back the rights and freedoms of the American people, then the American people will insist that we oppose that nominee and we intend to do so,” Kennedy said.

“I reserve all options,” Kennedy added a few moments later.

Filibuster a live option
Fourteen senators signed a bipartisan accord May 23 in an effort to avoid judicial filibusters. But even under that agreement, Dodd said, they retain “the option of having extended debate." (Dodd himself did not sign the accord.)

“The issue of filibusters becomes moot” if Bush names someone resembling O’Connor, Dodd told reporters.

Apart from her well-known support for abortion rights, the retiring justice has voted to uphold the use of racial preferences in law school admissions and just last week voted to ban displays of the Ten Commandments on government property.

The threshold decision Senate Democratic leaders now face is whether the political benefits of a filibuster of a nominee outweigh its costs if Bush nominates someone Democrats figure they can’t defeat on a confirmation vote.

While it takes 51 out of 100 to win confirmation, it takes 60 votes, a super-majority, to overcome a filibuster.

As few as 41 senators could block Bush from replacing O’Connor.

“My own instinct is that we will not have a filibuster here,” Judiciary Committee Chairman Sen. Arlen Specter, R-Pa. told reporters within minutes of the O’Connor announcement. “You really can’t become involved in a filibuster on an eight-person court and have four-to-four decisions. So many (decisions) are now 5 to 4. You’d have a dysfunctional court” if O’Connor’s replacement were blocked by a filibuster.

Asked whether there is a public expectation that O’Connor will be replaced by someone with like-minded views on issues such as abortion, Specter said, “There are so many publics, and there are so many expectations.”

'A very polarized country'
He added, “This is a very polarized country when it comes to the issues which come to the Supreme Court of the United States. I would expect people to want their choice, but everybody can’t have their own way. That’s why we have a president, and that’s why we have a Senate.”

Democrats used the threat of a filibuster to block votes on 10 Bush appeals court nominees in 2003 and 2004.

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