Friday, Apr 27, 2018
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The swing vote retires

Get ready for an incendiary summer. The political battle over a replacement for Justice Sandra Day O'Connor on the United States Supreme Court is likely to be even hotter than the one that many expect after the departure of Chief Justice William Rehnquist.

But with Justice Rehnquist apparently choosing to stick around for a while despite a bout with cancer at age 80, the focus now shifts abruptly toward presidential nomination and Senate confirmation of a successor to Justice O'Connor, who has occupied a crucial position as swing vote during her 24 years on the high court.

The first woman on the court when she was appointed in 1981 by Ronald Reagan, Justice O'Connor, 75, has defined herself by leading narrow but decisive majorities in retaining the right of women to abortion, rejecting challenges to affirmative action on university campuses, and allowing terrorist detainees their day in court.

Although a reliable conservative in most cases - she voted with the majority in Bush vs. Gore, which resolved the 2000 presidential election in George Bush's favor - Justice O'Connor nonetheless has received strong criticism for her less than predictable opinions from the far right of America's political spectrum.

That will make the choice of her successor a flash point even more intense than if the retiree were Justice Rehnquist, a staunch conservative. Right-wing groups already have begun an $18 million pre-emptive campaign to support President Bush's nominee - whoever it is - against expected attacks from the left.

Because only one other woman - Justice Ruth Bader Ginsburg - currently sits on the court, the President would do well to carefully consider the issue of gender equity. Women constitute more than half of the American population and they deserve fair representation on the body that decides momentous issues for our society.

For his part, Mr. Bush says he will move ahead quickly, with an eye to having Justice O'Connor's successor confirmed by the time the court starts its new term in October. That's a tight three-month schedule, which almost certainly will be marked by an explosion of political heat.

Mr. Bush says he wants, and the nation deserves, "a dignified process of confirmation" in the Senate for Justice O'Connor's successor, "characterized by fair treatment, a fair hearing, and a fair vote."

The President can help assure a smooth and rapid confirmation if he consults with senators of both parties on possible nominees, and if he chooses someone who is plainly qualified, respected in the broad reaches of the legal community, and not too far to the political right.

That is not Mr. Bush's style, however, as evidenced by several controversial choices for lower court judges, some of which nearly precipitated a constitutional crisis in recent months over the right of filibuster in the Senate.

Moreover, the President has made a point of asserting that any Supreme Court nominees will be in the mold of Justice Antonin Scalia, the court's ideological confrontationalist, and Justice Clarence Thomas, a lackluster choice when he was appointed by Mr. Bush's father in 1991.

If the President follows through on that myopic vision for the nation's highest court, it could be a long, hot summer.

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