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 Editorials | At Issue | September 2005 
US Court's Balance Should Be Retained
 The San Jose Mercury News
| | Supreme Court associate Justices look on as the casket carrying Chief Justice William H. Rehnquist is brought into the Supreme Court in Washington September 6, 2005. Rehnquist's casket was carried up the steps of the Supreme Court Tuesday by former clerks including John Roberts, the man nominated to succeed him. The associate Justices are (R-L) John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg. (Photo: Jason Reed/Reuters) |
With the death Saturday of Chief Justice William Rehnquist, President George W. Bush can now replace two Supreme Court justices - an opportunity that last occurred in 1971 when Rehnquist himself was one of President Nixon's two nominees.
The stakes are high: Senate Democrats and moderate Republicans must not waiver or compromise. They must warn Bush: They will not confirm an ideologue to the court or elevate a conservative activist - justices Antonin Scalia or Clarence Thomas - as chief justice.
The choice of a dogmatic right-wing justice could complete the dangerous counterrevolution on the court that Rehnquist began but didn't finish. A bloc of cautious conservatives, led by Justice Sandra Day O'Connor, tempered, if not sometimes thwarted, the Rehnquist conservatives' efforts to return to a pre-New Deal era of states' rights and an emasculated Congress. They preserved Roe vs. Wade, affirmative action, the ban on school prayer and fundamental labor, health and environmental protections - often on 5-4 votes.
Now that O'Connor has retired, the precarious balance on the court is in jeopardy.
John Roberts, whom Bush has nominated to replace her, is unmistakably conservative. But he at least appears to be an incrementalist who would approach cases with an open mind (see accompanying editorial). While not preferable, he appears acceptable.
But Democrats must not be suckered. Bush might follow with a hard right.
During his 33 years on the court, 18 as chief justice, Rehnquist left a deep mark. He went from being the Lone Ranger, the sole dissenter in his early years, to being the leader of the Federalist Five, the five justices, including O'Connor, who sought to curb the power of Congress relative to the states. Rehnquist led efforts to speed up the death penalty by limiting federal court appeals and to strip defendants of some important rights.
He was far more temperate and balanced in his role as chief justice than in his views of justice and the Constitution. The other justices considered him an impartial administrator who minimized rancor. Neither Thomas nor Scalia, like-minded justices, has his skill or personality.
Rehnquist served with integrity; he fought to preserve the court's independence. But America would be a harsher and far more unequal nation if he had been able to impose his world view more of the time on the court. Women would have lost their right to an abortion; laws against discrimination would have been savaged. Mentally retarded inmates convicted of capital crimes would continue to be executed. There no longer would be campaign donation limits for the rich and powerful.
Americans need many of the rights and protections that Rehnquist wanted to overturn. The Senate must guard against another Rehnquist. |
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