As if there wasn’t enough tension in politics last fall during the presidential election, students return to campus on the precipice of political history in the making, this time surrounding the U.S. Supreme Court. Not only has it been over 10 years since the last vacancy on the Court, but not since 1971 have there been simultaneous positions to fill. President Bush should take care in selecting his second nominee, and make sure to preserve the ideological diversity of the Rehnquist court.
Until the passing of U.S. Chief Justice William Rehnquist last weekend, it seemed that the nomination process for John Roberts — who was to take the place of retiring Justice Sandra Day O’Connor — would begin this week with relatively little inter-party strife. But now that Bush has nominated Roberts for the position of chief justice, this week’s confirmation hearings promise to grow more intense, as will the anticipation of whom Bush will nominate to fill O’Connor’s still-vacant seat.
A great deal lies in the balance. If confirmed by the Senate, Roberts would become the youngest chief justice since John Marshall. There are many pending issues to be concerned about, and no citizen is immune to the influence of the court’s rulings. During the past decades, 5-4 rulings have dictated the norm for many mainstream issues, including reproductive rights, voting regulations and discrimination, corporate responsibility and the environment. O’Connor was a swing vote in the University’s affirmative action cases, and one more conservative vote could overturn the 2003 Lawrence vs. Texas ruling that allows consenting adults to engage in certain sexual acts in the privacy of their own homes.
In promoting Roberts, Bush has altered the shape of the nomination process from how it appeared earlier this summer. As a former clerk of the late Rehnquist, it can be inferred that Roberts will continue his predecessor’s conservative ideological legacy, bringing the core issue of the judicial nomination season back to the forefront — the future balance of the Supreme Court without O’Connor.
Certainly, Bush has earned the right to select a nominee who will undoubtedly reflect his beliefs. Yet the judicial process extends beyond labels of conservative or liberal — it is about the quality of judicial review and the integrity of the decision-making process. Now that Bush nominated Roberts, he has the opportunity to bring someone new to the table, and not select another nominee with the same philosophy as Roberts. It is important to foster an environment where actual deliberation is possible, and choosing judges with varying judicial philosophies on the key issues of the day will ensure that decisions regarding the highest laws of our country are given proper debate.
Roberts’s confirmation as chief justice seems nearly certain, but the fight for O’Connor’s seat has been given new life. Not since the 1820s has the Supreme Court gone without change for so long. Now, in an era of blogging and 24-hour newscasts, nominating a justice is an entirely different ballgame than it was in the past. Following O’Connor’s resignation in July, The Washington Post reported that her successor’s confirmation process would be the most expensive in the nation’s history, “certain to break $50 million and, if the nominee is especially controversial, likely to approach $100 million.” Conservative and liberal groups alike have begun fundraising efforts for what seems like another election, complete with targeted states, e-mail campaigns, lobbying visits and media spots. Nonetheless, Bush should steer clear of lobbyist pressures and litmus tests by choosing to nominate a qualified legal expert who can contribute to the court’s ongoing debates.