Selecting a Successful Justice

By Russell Shaw
Herald Columnist
(From the issue of 7/21/05)

If there's any question why social conservatives — and social liberals, for that matter — are concerned about filling vacancies on the Supreme Court, consider some issues the court will touch on in the term that starts in October. They include abortion, gay rights, physician-assisted suicide and capital punishment — with lots more sure to come.

(After the Herald went to press on July 19, President George Bush nominated Judge John Roberts to fill the vacancy on the Supreme Court left by the resignation of Sandra Day O'Connor.)

Good character, intelligence and technical competence in law are essential for a successful justice. But considering the sensitive matters before the court or soon to be there, a nominee's views on substantive issues cannot be ignored.

Consider, too, the barely veiled suspicion of religion expressed by several current justices, Sandra Day O'Connor among them, in last month's decisions on displaying the Ten Commandments on public property. The court with Solomonic wisdom judged this allowable on the grounds of the state capitol in Austin, Texas, but not in courthouses in two Kentucky counties.

Writing for the majority in the Kentucky case, Justice David Souter warned against religious divisiveness. Upon closer examination it appears that by divisiveness Souter means the expression by religious conservatives of views on public policy. Keep quiet and let secularists settle things is the message, it seems.

Justice Stephen Breyer, swing vote in the two cases, also had divisiveness on his mind. The difference between displaying the Ten Commandments in Texas and displaying them in Kentucky, he explained, was that in Texas nobody complained for the better part of 40 years, while in Kentucky the state chapter of the American Civil Liberties Union complained right from the start.

What Justice Breyer left unsaid is that 40 years ago in Texas — and Kentucky and just about every place else — no one would have thought of launching a constitutional challenge to displaying the Commandments. Divisiveness was introduced into this issue by the Supreme Court's querulous church-state rulings during the last four decades.

Against this background there's something very strange about President Bush's chiding of conservatives for being disturbed about the "law of the land" position on legalized abortion expressed by his friend and potential Supreme Court nominee, Attorney General Alberto Gonzales.

Why shouldn't conservatives worry? Of the six current justices who take a pro-choice, pro-Roe v. Wade position on abortion, four were named by Republicans: John Paul Stevens (President Gerald Ford), O'Connor and Anthony Kennedy (President Ronald Reagan), and Souter (President George H.W. Bush). These chief executives may in some cases have been surprised at what they got, but there is hardly much consolation in that.

Speaking with some Catholic journalists a few days ago, Sen. Rick Santorum (R-Pa.), a prolife Catholic who is number three in the Senate Republican hierarchy, said the President was aware of prolife concern about Gonzales. "I'm sure he'll take it into consideration," Santorum remarked. That could be. But Bush's comment, in the context of defending Gonzales — "I'm not a lawyer, thankfully, and so I will let my legal experts deal with the ramifications of legal opinions" — is not greatly encouraging.

Amid all that's been said about Supreme Court nominations, one of the very best statements was that of the U.S. bishops' president, Bishop William S. Skylstad of Spokane.

Bishop Skylstad urged the selection of "qualified jurists who, pre-eminently, support the protection of human life from conception to natural death, especially of those who are unborn, disabled, or terminally ill." They should be "cognizant of the rights of minorities, immigrants, and those in need, respect the role of religion and of religious institutions … and favor restraining and ending the use of the death penalty," he said

Is that really asking so much?

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