With heightened anticipation of a possible vacancy on the Supreme Court later this week, the issue of abortion–a dividing line between the right and left–stands to be the key test for whomever President Bush might nominate.
Speculation continued to swirl Monday about the future of Chief Justice William Rehnquist, who suffers from cancer and is in declining health, according to friends and associates. The buzz on the streets of Washington, D.C., centers on the future of the court.
“Abortion will be an issue on the Supreme Court. I don’t think there’s any doubt about it,” said Herman Schwartz, author of Right Wing Justice: The Conservative Campaign to Take Over the Courts. Schwartz appeared at a panel discussion at the National Press Club last week alongside HUMAN EVENTS Editor Terence Jeffrey.
“I believe that the Democrats have effectively put a litmus test, a pro-Roe litmus test, on Supreme Court justices,” Jeffrey said. “And I think [that litmus test] will be applied to a Bush court nominee.”
As conservatives push President Bush to look toward strong judicial nominees who will challenge the court’s Roe v. Wade decision, the President is already being attacked on the left from liberals who are demanding the right to screen potential nominees.
Mark Tushnet, author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law, said there is a great deal of pressure to find a nominee who could satisfy both liberals and conservatives. He said it appears imminent that a battle will ensue over potential nominees over social issues, particularly abortion and homosexuality.
Tushnet, who also appeared on the panel, said the next nominee will most likely be a “modern Republican,” one who has emerged from the mold of President Ronald Reagan, as opposed to a “traditional Republican,” or “Rockefeller or country club” Republican.
The panelists were in agreement, however, that the next nominee might be someone similar to Rehnquist.
“It is my belief,” Jeffrey said, “that if [Rehnquist retires] that President Bush, with his first Supreme Court nomination, will at best be able to only maintain the current philosophical balance on the court, he will not be able to move it to the right.”
Schwartz agreed: “What it will do is it will extend for another 23 years the basically Rehnquist vote.”
Even Democrats are resigned to the fact that a Rehnquist clone is probably in the cards, said Tushnet. He said the nominee could be “a younger and slightly more conservative Rehnquist, but not somebody who will change the direction of the court.”