Supreme Court Could See Dramatic Changes

By Ken Concannon
Herald Columnist
(From the issue of 6/19/03)

A Constitutional crisis is on the horizon. Within the next few months, this country is likely to witness Senate drama unseen since the Supreme Court nomination of Robert Bork and Clarence Thomas, several years ago. The catalyst for the drama will be the registration of at least two Supreme Court justices.

Court watchers are predicting that two of the "Supremes" will retire this summer — Chief Justice William Rehnquist and Associate Justice Sandra Day O’Connor. Rehnquist, beloved by the pro-life movement, was one of the two dissenters in the Supreme Court’s infamous Roe vs. Wade and Doe vs. Bolton abortion decisions 30 years ago. O’Connor, on the other hand, is pro-choice. She was one of the five justices who voted in favor of the Supreme Court’s awful Carhart vs. Nebraska decision that undid a Nebraska ban on partial birth abortion. The third possible — but not probable — retirement announcement would come from 83-year old associate justice John Paul Stevens, who, like O’Connor, is also considered to be pro-choice.

Assuming that both Rehnquist and O’Conner do actually retire, the Supreme Court watchers are predicting that the Bush administration will fill the vacated chief justice position with one of the seven remaining justices on the Supreme Court, probably Antonin Scalia or Clarence Thomas, both of whom are considered to be in the pro-life camp. The two retirements and the replacement of the chief justice position, with one of the sitting associate justices, will create three vacancies on the Supreme Court, all of which will be subject to Senate confirmation.

Considering the number of pro-life minded nominees for lower-level federal judgeships the Bush administration has presented to the Senate for confirmation, it is reasonable to assume that at least one — more likely both — of the nominees for the vacant associate justice positions will also be in the pro-life camp. This is a scenario that terrifies the abortion industry and its principal political action committees, National Abortion and Reproductive Rights League Pro-Choice America (formerly just NARAL) and the National Organization for Women (NOW).

According to these organizations, the nine-person Supreme Court, as it now stands, holds just a one-vote majority, and the replacement of any pro-choice, pro-Roe vs. Wade justices with a justice who recognizes Roe for the awful decision it really was, would change the balance of power in the Court and set up Roe for an eventual reversal. Reversal of the Row decision would remove Constitutional protection of the abortion industry, and enable state legislatures to regulate or outlaw abortion as they did prior to Roe. That, of course, would cut significantly into the industry’s profit margin.

For some time now the abortionists have been warning their supporters that control of the federal courts — specifically of who gets to sit on the lower federal courts as well as the Supreme Court — is the key to the continued support of the Roe decision. The judges who sit on the lower federal courts are in a position to prevent cases that challenge the validity of the Roe decision from reaching the Supreme Court. These lower-level federal judgeships are also a primary source of nominees for positions on the Supreme Court.

For almost all of the past 30 years either the Presidency, which nominates candidates to these courts, or the Senate, which confirms those nominees, has been in control of the Roe supporters. When that situation changed this year the pro-choice minority in the Senate, at the urging of NARAL and NOW, chose an unprecedented course of action to keep pro-life judges out of the federal courts. They filibustered. The pro-choice minority in the Senate has refused to permit a vote by the full Senate on the confirmation of several lower court nominees who have been approved by the Senate Judiciary Committee, but are known to be, or just suspected to be, pro-life. They would rather debate, endlessly, the lack of merit of the proposed nominees.

Under current Senate rules cloture — i.e. the end of the debate, and the commencement of a confirmation vote — requires a 60-vote majority to succeed. To date, the pro-life majority in the Senate has been unable to garner 60 votes, although there are enough votes to ensure confirmation.

The gridlock in the Senate has created a vacancy crisis in the lower federal courts. When the pro-choice minority moves to block confirmation of nominated Supreme Court Justices, as it surely will, the crisis will move to the Supreme Court.

Concannon is a freelance writer from Manassas.

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