Supreme Court Showdown

By Russell Shaw
Herald Columnist
(From the issue of 6/30/05)

Instead of preventing a titanic showdown over federal judgeship nominations, the Senate compromise negotiated last month by seven Republicans and seven Democrats may just have postponed it a few weeks — and guaranteed that when the showdown finally does come, it will focus on the Supreme Court itself.

The real test, it is widely supposed, will take place after Chief Justice William Rehnquist, who is suffering from cancer, leaves the high court and President Bush nominates a successor. Many people in Washington consider the resignation of Rehnquist to be likely when the court's current term ends shortly.

Religious groups deeply concerned about courts and social issues have not just one but two reasons for following these developments closely.

One of these, obviously, concerns the issues themselves. Washington Post Supreme Court reporter Charles Lane correctly described abortion as the "pivotal issue" in the last month's maneuvering over judgeships. That pivotal role of abortion was underlined by coincidence — or design? — as matters were coming to a head in the Senate, when the court took the occasion to announce it would consider a new abortion-related case, its first in five years, in the next term.

The other reason lies in the hope that, when deliberation on a Bush nominee for the Supreme Court begins and religious groups seek to take part, opponents will temper the anti-religious hostility of their rhetoric. In recent months the vitriol has gone far beyond simple disagreement over issues and nominees, to challenge the very right of people of faith to enter the political debate.

No one imagines the views of religious believers on public policy and the common good should enjoy preference just because they have religious sources. But neither should the religious sources of their views be grounds for excluding people of faith — as some would wish — from the discussion of public questions, including nominations to federal courts.

In an Op-Ed article in the May 4 Post, John McCandlish Phillips, for 18 years the only evangelical Christian on The New York Times' editorial staff, noted repeated warnings in both publications concerning the supposed threat of "theocracy" and "jihad" by evangelicals and traditional Catholics. This moved Phillips to remark that in a half-century in the news business he had "never encountered anything remotely like the fear and loathing lavished on us by opinion mongers in these world-class newspapers."

It's far from certain that the deal worked out by the 14 senators will forestall a monumental Senate battle over Bush's first Supreme Court nomination. Its essence is that senators won't filibuster judicial nominees except in "extraordinary" circumstances. But every lawmaker retains the right to decide what's extraordinary.

The Supreme Court's determination to take a new abortion case is a reminder of what will be at stake whenever it's time to select someone to replace Rehnquist, a consistent critic of the 1973 decision legalizing abortion.

The case, Ayotte v. Planned Parenthood of Northern New England, comes to the high court on appeal from a ruling by the U.S. First Circuit Court of Appeals overturning a New Hampshire law requiring 48 hours' notice to the parents of a teenage girl before she has an abortion, unless a judge grants an exception or her life is at risk.

The First Circuit Court held the law unconstitutional because it lacks an exception covering risks to health. The state says that contingency is covered in other state laws. The case also opens up broader questions regarding the Supreme Court's current thinking about abortion. It will be argued next fall and decided in 2006.

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