WASHINGTON – The U.S. Supreme Court, which has not had a vacancy in more than 11 years, is like a dam holding back the floodwaters.
With all but one of the justices older than 65, President Bush is likely to have three or more nominations in the next term that legal scholars say could easily change the court’s stance on abortion, affirmative action, gay rights, the role of religion in public life and many other issues.
The first opportunity could come within days or weeks, as some insiders expect Chief Justice William Rehnquist to resign soon as it becomes increasingly clear that he is unable to function in his judicial or his administrative capacities because of an apparently severe form of thyroid cancer and debilitating treatment.
Since Rehnquist is an archconservative and abortion foe, his replacement with another conservative would not have a huge effect on the court, except possibly in a few areas.
But an eventual resignation by Justices John Paul Stevens, 84, or Sandra Day O’Connor, 74, could dramatically alter the court’s stance on a number of 5-4 cases, such as last year’s decision upholding some affirmative action. If both of them go, or one is joined by one of the others in the liberal or moderate conservative bloc, then there could be a revolution in the court’s jurisprudence, legal scholars say.
Justices Clarence Thomas and Antonin Scalia have long fought Roe v. Wade, the abortion rights decision, and bitterly opposed the court’s 6-3 gay rights decision last year.
The two men, whose positions Bush has said he admires, have etched out a much more ambitious conservative agenda in their dissents, one that could curtail economic regulation, severely diminish public limitations on private property use, and completely eliminate congressional authority over the states, among many other things.
“There is very little settled law if you give Bush the chance to replace O’Connor and or Stevens,” said American University law professor Stephen Wermiel.
“Abortions, affirmative action, gay rights, role of religion in our public life, all of these are things the court has been evenly divided and are in play. There is no question Thomas and Scalia would vote to overrule any precedent I just named.”
Bush’s nominations to federal appeals courts during his first term often have been extremely conservative and controversial. The only restraint has been the Democratic minority in the Senate, which has blocked 10 of the nominees through filibusters.
That minority is about to get smaller, with the Republicans gaining four more seats in the Senate in Tuesday’s elections, giving them 55 seats.
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