WASHINGTON (BP)–The issue of judicial appointments to the U.S. Supreme Court found new life Oct. 25 with news that Chief Justice William Rehnquist has undergone thyroid cancer surgery.
The potential impact of judicial appointments — particularly on the practice of abortion in America as carved out by the 1973 Roe v. Wade decision — had surfaced in the televised debates between President Bush and his opponent, Sen. John Kerry, the Democratic Party’s nominee.
Now, however, the issue is percolating anew. As USA Today noted in one of its Oct. 26 page-one headlines: “Rehnquist’s condition revives vacancies issue.”
Details of Rehnquist’s battle with thyroid cancer were not released in the Supreme Court’s Oct. 25 announcement, leaving medical experts unable to voice optimism or guardedness about the 80-year-old Renquist’s prospects for recovery.
The announcement did note, however, that Rehnquist would be on the bench Nov. 1 when a two-week court recess concludes.
Rehnquist was appointed to the Supreme Court by President Nixon in 1972; the following year he cast one of two dissenting votes in the landmark Roe v. Wade case. He was appointed as chief justice by President Reagan in 1986.
A stalwart of the Supreme Court’s conservative wing, Rehnquist often has been among the five votes to prevail in split 5-4 decisions tilting toward conservative rulings, such as a recent decision favoring vouchers for parents to use at parochial schools.
Rehnquist’s battle with thyroid cancer and his age are not the only factors in the high stakes involving the president’s re-election or Kerry’s bid to unseat the Republican incumbent.
Three associate justices also are over 70: John Paul Stevens, 84, Sandra Day O’Connor, 74, and Ruth Bader Ginsburg, 71. Both O’Connor and Ginsburg are cancer survivors.
Although the issue of judicial appointments frequently has been framed in terms of whether new appointees might someday overturn Roe v. Wade or whether they will continue to uphold it, the issue took shape in the town hall-style second president debate in this fashion:
Bush, asked whom he would appoint to a vacancy, lightheartedly stated, “I’m not telling…. I really don’t have — haven’t picked anybody yet.” But then he noted: “I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.
“Let me give you a couple of examples, I guess, of the kind of person I wouldn’t pick. I wouldn’t pick a judge who said that the Pledge of Allegiance couldn’t be said in a school because it had the words ‘under God’ in it. I think that’s an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.
“Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights. That’s a personal opinion. That’s not what the Constitution says….
“And so, I would pick people that would be strict constructionists. We’ve got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.”
Kerry, in his response, stated: “A few years ago when he came to office, the president said — these are his words –- ‘What we need are some good conservative judges on the courts.’ And he said also that his two favorite justices are Justice [Anthony] Scalia and Justice [Clarence] Thomas. So you get a pretty good sense of where he’s heading if he were to appoint somebody.
“Now, here’s what I believe. I don’t believe we need a good conservative judge, and I don’t believe we need a good liberal judge. I don’t believe we need a good judge of that kind of definition on either side.
“I subscribe to the Justice Potter Stewart standard. He was a justice on the Supreme Court of the United States. And he said the mark of a good judge, good justice, is that when you’re reading their decision, their opinion, you can’t tell if it’s written by a man or woman, a liberal or a conservative, a Muslim, a Jew or a Christian. You just know you’re reading a good judicial decision. What I want to find, if I am privileged to have the opportunity to do it — and the Supreme Court of the United States is at stake in this race, ladies and gentlemen.”
Kerry, in his comments on abortion during the Oct. 13 debate, stated, “I believe that choice is a woman’s choice. It’s between a woman, God and her doctor. And that’s why I support that. Now, I will not allow somebody to come in and change Roe v. Wade. The president has never said whether or not he would do that. But we know from the people he’s tried to appoint to the court he wants to. I will not. I will defend the right of Roe v. Wade.”
Bush, during the Oct. 13 debate, stated in part, “I think it’s important to promote a culture of life. I think a hospitable society is a society where every being counts and every person matters. I believe the ideal world is one in which every child is protected in law and welcomed to life. I understand there’s great differences on this issue of abortion, but I believe reasonable people can come together and put good law in place that will help reduce the number of abortions. Take, for example, the ban on partial-birth abortion. It’s a brutal practice. People from both political parties came together in the halls of Congress and voted overwhelmingly to ban that practice. It made a lot of sense. My opponent, in that he’s out of the mainstream, voted against that law.”
In recent months, three federal appeals courts have ruled against the constitutionality of the Partial Birth Abortion Ban Act passed by Congress and signed by Bush last year.
The party platforms, on the issue of abortion, also stand sharply in contrast.
The Republicans state in part: “… the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution and we endorse legislation to make it clear that the Fourteenth Amendment’s protections apply to unborn children.”
The Democrats state in part: “Because we believe in the privacy and equality of women, we stand proudly for a woman’s right to choose, consistent with Roe v. Ware, and regardless of her ability to pay. We stand firmly against Republican efforts to undermine that right.”