On the Eve of an Expected Supreme Court Vacancy

TO: Journalists
FR: Ralph G. Neas, President, People For the American Way

As we approach the possibility of one or more Supreme Court vacancies, let me say first and foremost that my colleagues and I sincerely hope that Chief Justice William Rehnquist’s health permits him to remain on the bench as long as he wishes. While we have vigorously disagreed with much of Rehnquist’s jurisprudence, especially his long-term efforts to reinvigorate a “states’ rights” approach to the Constitution, we respect the Chief Justice’s love for the Court, his success in creating comity among his colleagues, and his courage in continuing to work in the face of daunting health problems.

If, of course, one or more justices do step down this month (we hope none will), President Bush will be faced with a crucial choice, one that he is likely to face several times over the next few years. The likelihood of multiple vacancies during this presidency means that President Bush will have tremendous influence over the direction of the Court for decades to come. The choices he makes will determine Americans’ rights, freedoms, and legal protections for a generation or more.

The key question facing President Bush is whether he will take the Senate’s role seriously and engage in genuine consultation with the goal of finding a consensus nominee, or will instead heed right-wing leaders’ demands for an aggressively activist ideologue who would ensure a divisive confirmation battle.

Senators, of course, will also face their own choices. The framers of the Constitution made the Senate the president’s co-equal constitutional partner in the confirmation of lifetime federal judges, a vital element of the checks and balances that were built into our system of government to protect against abuses of power. Senators of both parties must recognize that their job is not to simply rubber-stamp the president’s nominee, but to make a thorough evaluation of a nominee’s fitness for office. We strongly believe that confirmation to the Supreme Court should be dependent on a demonstrated commitment to upholding the rights and legal protections that Americans cherish.

It’s All on the Line

In recent years, many Supreme Court decisions upholding important constitutional and legal principles such as privacy and equality under the law and were decided with only one or two vote majorities. New appointees in the mold of Justices Scalia and Thomas could lead to the overturning of scores of Supreme Court rulings that, according to polling data, enjoy overwhelming popular support, including decisions affirming the right to privacy, allowing affirmative action in higher education, protecting the rights under state law of individuals who are members of HMOs, and upholding the Environmental Protection Agency’s authority to take action to combat air pollution when a state fails to act.

People For the American Way Foundation’s recently updated Courting Disaster report documents that a Court majority sharing the Scalia and Thomas judicial philosophies could overturn more than 100 Supreme Court precedents concerning civil rights enforcement, privacy and reproductive choice, religious liberty, environmental protection, workers’ rights, consumer safety, and much more.

The Court under Rehnquist has been markedly activist, striking down in whole or in part more congressionally enacted statutes than any previous Supreme Court in our history, including laws prohibiting states from interfering with religious freedom or discriminating against people with disabilities, as well as laws banning possession of handguns near schools and providing remedies to prevent violence against women.

But even the very conservative Rehnquist was not willing to wage ideological warfare as aggressively as Scalia and Thomas. If Rehnquist is replaced by a justice aligned with the judicial philosophies of Scalia and Thomas, the Court could be moved even further to the right, undermining much of the legal and social justice progress of the past 70 years. If O’Connor were replaced with such a justice, the threat would be more immediate and far-reaching. Regardless of the reason for a vacancy, any Supreme Court nominee must be held to the same high standards, including a commitment to protecting Americans’ rights and freedoms.

Bipartisan Calls and Bipartisan Precedent for Consensus

The bipartisan group of 14 senators who forged the nuclear option-ending compromise last month clearly and unequivocally called on President Bush to take seriously the Constitution’s mandate for federal judges to be appointed with the advice and consent of the Senate.

“We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration,” says the written agreement. “Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.”

There are concrete examples of how a spirit of genuine consultation can lead to consensus nominees. In 1993, when the Democrats controlled 56 seats in the Senate, a larger majority than the one now commanded by the Republicans, President Bill Clinton consulted with Orrin Hatch, then the ranking Republican on the Senate Judiciary Committee. By Hatch’s published account,1 Clinton took the Republican senator’s advice, refrained from selecting a potentially divisive nominee, and instead nominated Ruth Bader Ginsburg, who was confirmed with overwhelming bipartisan support in a vote of 96-3. Similarly, when President Ronald Reagan faced his first vacancy, he nominated Sandra Day O’Connor, a mainstream conservative who was confirmed by the Senate 99-0, and who has become one of the most respected and influential members of the Supreme Court.

Unfortunately, right-wing leaders want nothing to do with consensus. The same leaders who most insistently demanded, and still demand, that Senator Frist deploy the nuclear option, and who most vociferously attacked the bipartisan agreement that averted the option’s detonation, are also demanding the appointment of a hard-right ideologue.

Preparations for a Long-term Campaign

Whatever happens this summer will be part of a four-year campaign to save the Court and the Constitution, which began in January with the emergency campaign to save the filibuster. There could easily be three or four vacancies over the next few years, and the progressive coalition is prepared for an intensive long-term public education and mobilization campaign to prevent the creation of a Supreme Court majority that would dismantle Americans’ hard-won rights and legal protections.

The Emergency Campaign to Save the Filibuster, and other coalition efforts on the nuclear option and on individual appeals court nominees, have helped build a network of state coalitions on judicial nominations. In states with senators who are expected to play a key role in future confirmation decisions, those local coalitions are being supported by organizers employed in national coalition partners’ field offices or hired to work on the court campaign.

People For the American Way has converted a 2,500-square foot conference room into a state-of-the-art war room, with more than 40 computer workstations and scores of phone lines that volunteers will use to connect supporters and activists with their senators and to mobilize grassroots support in targeted states. There is already a committed team of volunteers recruited and trained to staff the war room, which will also help support and coordinate the activities of the coalition.

Some of the nation’s most creative and effective communications consultants and political strategists are joining forces with the already impressive experience, expertise and capacities of organizations collectively representing millions of Americans, ensuring that we will be able to get the word out to Americans by every means at our disposal – advertising, earned media, public events, Internet organizing and education campaigns, and even groundbreaking use of cell phone technology. (Click here for more information on People For’s Supreme Court team.)

Resources for Journalists

People For the American Way and PFAW Foundation have produced more than 100 reports on judicial issues, including reports on specific federal judicial nominees and potential Supreme Court nominees. (In fact, some potential Supreme Court nominees have already been examined in reports published when they were nominees to other positions, including the federal appeals courts. People For the American Way Foundation’s recently updated Courting Disaster report, by analyzing the dissenting and concurring opinions of Justices Antonin Scalia and Clarence Thomas, documents that a Supreme Court majority dominated by their judicial philosophies could overturn more than 100 Supreme Court precedents.

People For the American Way and PFAW Foundation have also invested in substantial public opinion research, which has confirmed that overwhelming majorities of Americans support crucial 5-4 Supreme Court decisions that will be at risk, including decisions upholding privacy, reproductive choice, environmental protection and affirmative action. Other coalition partners have commissioned additional research, which will be pooled to ensure that our messages and strategies are as effective as possible.

The coalition’s research task force has dedicated countless hours to researching the records, and in many cases the judicial rulings, of about a dozen individuals considered likely or potential Supreme Court nominees.

People For the American Way will have in-depth, but still preliminary, reports available immediately if one of these individuals is nominated for the Court.

Conclusion

No matter which justice – or justices – resigns, a new appointment will be of enormous significance. The new justice will play an important role in defining our constitutional rights and liberties for decades, shaping decisions that could affect for generations how America works and how Americans live: Will the courts abandon their role in preserving Americans’ right to privacy and strip women of the constitutional right to make their own family planning and reproductive choices? Will Congress lose the power to protect Americans’ civil rights from abuses by state governments and others? Will universities be prohibited from engaging in affirmative action to promote racial diversity? Will corporations gain excess political and economic power? Will the Supreme Court further undermine the federal government’s ability to safeguard the air we breathe and the water we drink?

President Bush is being pushed by advocates within and outside of his administration for nominees who will use a seat on the Supreme Court to advance a legal and political agenda to turn back the clock on decades of legal precedents and the fundamental rights and liberties they protect. A nominee with a judicial philosophy that threatens hard-won rights and legal protections would generate tremendous opposition.

Political battles over Supreme Court nominations end in the Senate, but they begin in the White House. The choice between controversy and consensus is the President’s. If he selects a consensus nominee, he will avoid controversy and enhance the legitimacy of the Supreme Court. But if instead President Bush follows the demands of James Dobson, Pat Robertson, and Jerry Falwell, and nominates a far-right ideologue, he will provoke yet another divisive confirmation battle, one in which Americans’ rights and freedoms are at risk.

PFAW and Coalition Contacts:

Ralph G. Neas (bio) can be reached at any time through Peter Montgomery (cell 202-744-0941), Laurie Boeder (cell 202-441-5814), or Josh Glasstetter (cell 607-227-5929).

Communications Task Force Co-Chairs

  • Mystique Cano, LCCR: 202-466-3311 (Cano@civilrights.org)
  • Peter Montgomery, People For: 202-467-2388 (pmontgomery@pfaw.org)
  • Kelly Landis, Alliance for Justice: 202-464-7350 (klandis@afj.org)

Lobbying Task Force Chair

  • Nancy Zirkin, LCCR: 202-466-3311 (Zirkin@civilrights.org)

Grass Roots Task Force Co-Chairs

  • Ellen Buchman, LCCR: 202-263-2893 (Buchman@civilrights.org)
  • Kimberly Robson, PFAW: 202-467-2395 (krobson@pfaw.org)
  • Kendra Sue Derby, Alliance for Justice: 202-822-6070 (ksderby@afj.org)
  • Debbie Mirman Stillman, NCJW: 202-296-2588 (debbie@ncjwdc.org)

Research Chair

  • Elliot Mincberg, PFAW: 202-467-2392 (emincberg@pfaw.org)

PFAW War Room Coordinator

  • Kristin Bateman, PFAW, 202-467-2393 (Kbateman@pfaw.org)

1Hatch, Orrin G. Square Peg: Confessions of a Citizen Senator. New York: Basic Books, 2002. p 180.
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