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After Sandra Day O’Conner: High Stakes Battle Over Supreme Court Gears Up in Washington

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Supreme Court Justice Sandra Day O’Connor retired from the bench last Friday. In 1981, O’Conner became the first woman to serve on the Supreme Court. Her resignation created a vacancy on the court for the first time in 11 years and set in motion a high stakes political battle in Washington that could last for months. We host a debate with the Alliance for Justice and the conservative Committee for Justice as well as Planned Parenthood. [includes rush transcript]

Supreme Court Justice Sandra Day O’Connor retired from the bench last Friday and set in motion a high stakes political battle that could last for months. O’Connor was considered a crucial swing vote or a “moderate conservative.” Whoever is appointed to replace her could dramatically shift the court further to the right, especially when it comes to issues like abortion, affirmative action and civil liberties.

In 1981, O’Connor became the first woman appointed to the Supreme Court. She has been described as the most powerful woman in America and resigns at the age of 75. She was appointed by President Ronald Reagan and expected to toe the conservative line. She disappointed conservatives in the 1989 case Webster v Reproductive Health Services. O’Connor was the deciding vote that upheld a law giving states the right to make specific abortion decisions, defying the conservative push for further restrictions on abortions.

The right to legal abortion is supported by six of the current justices, so it appears secure in the short term. With O’Connor’s departure, it will probably take the resignation of only one of the court’s four remaining moderate-to-liberal members to overturn Roe v Wade, the landmark 1973 decision that made abortion legal.

O’Connor’s resignation came as a surprise when attention had been focused on the possible upcoming resignation of the Chief Justice William Rehnquist. He is 80 years old and suffering from thyroid cancer. Renquist is expected to resign before President Bush leaves office.

After President Bush makes his selection, there will be confirmation hearings, the first in almost 11 years. Bush stated on Friday that he wants a dignified confirmation process.

  • President Bush, Washington DC, July 1, 2005.

That was President Bush speaking in Washington last Friday. But even though the nomination of a new Supreme Court Justice is at least a week away, the battle lines are already vividly drawn. Conservative groups are pressing for Bush to make good on his campaign promise of appointing someone in the mold of Clarence Thomas and Antonin Scalia, the two most conservative members of the court. They have also vociferously opposed the selection of the frequently mentioned White House Attorney General Alberto Gonzales because they question his commitment to overturn abortion rights.

Democrats are asking for an appointment in the mold of the more centrist O’Connor. This is a notable contrast from what many Democrats felt about her in December of 2000 when she voted with the majority to end the Florida recount and give the presidency to Bush.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Bush stated on Friday, he wants a dignified confirmation process. Here he is speaking in Washington.

PRESIDENT GEORGE W. BUSH: The nation deserves, and I will select, a Supreme Court Justice that Americans can be proud of. The nation also deserves a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing and fair vote.

AMY GOODMAN: That was President Bush speaking in Washington last Friday. But even though the nomination of a new Supreme Court Justice is at least a week away, the battle lines are already vividly drawn. Conservative groups are pressing for Bush to make good on his campaign promise of appointing someone in the mold of Clarence Thomas and Antonin Scalia, two of the most conservative members of the court. They have also vociferously opposed the selection of the frequently mentioned White House Attorney General, Alberto Gonzales, because they question his commitment to overturn abortion rights. Democrats are asking for an appointment in the mold of the more centrist O’Connor. This is a notable contrast from what many democrats felt about her in December of 2000, when she voted with the majority to end the Florida recount and give the presidency to Bush.

We’re joined today by three guests who are with organizations deeply involved in the process. In our studio here in New York, Nan Aron joins us. She’s President of the Alliance for Justice. We’re joined on the telephone by Sean Rushton. He is Executive Director of the Committee for Justice, one of the leading conservative groups based out of Washington. And Karen Pearl joins us. She’s Interim President of Planned Parenthood. In 1985, Nan Aron founded the Alliance’s Judicial Selection Process, which since its inception has been a major player in the judicial nominations process. This is Democracy Now! Welcome all to Democracy Now! Nan Aron, first were you very surprised?

NAN ARON: We were very surprised. We didn’t expect Sandra Day O’Connor to resign. Of course, all eyes were on the Chief Justice. On the other hand, we had heard for several years that she was thinking about leaving the court, and it was assumed that once — when and if Bush made it to a second term, that she would take leave at that point.

AMY GOODMAN: And your plans now?

NAN ARON: Well, we are — all eyes are now on the White House. We are looking to President Bush to make a really historic decision. We’re hoping that he picks someone in the mold of a Sandra Day O’Connor, a moderate, consensus and most importantly, independent justice for the Supreme Court. You know, when she was chosen in 1980, lawyers urged President Reagan, the most conservative president up until then, to choose her over the objections of radical right groups in this country. He made that choice, and she has served with distinction on the Supreme Court.

AMY GOODMAN: Sean Rushton, your response to it being Sandra Day O’Connor and not William Rehnquist who announced retirement on Friday.

SEAN RUSHTON: I think we were surprised, as well. As Nan says, it was expected it would be the Chief Justice. I’m not sure, beyond that initial surprise, though, what it really changes. You know, as you said at the beginning, the President campaigned twice and also grew his majority in the Senate on the promise that he would appoint a court that would be less activist, that would involve itself less in decision-making that should really be left to the political branches of government. He cited Scalia and Thomas in that mold, and I think groups like Nan’s said before the election that if Bush were to be re-elected, that it would be a sign — or that it would be an opportunity for him to remake the court per his promises. And I think now that he has been re-elected and grown his majorities in the Senate, it’s a good opportunity for him to keep that promise.

AMY GOODMAN: Your plans?

SEAN RUSHTON: Our plans? Well, we’re going to work to make sure that the positive side of the story gets told. We know that our opponents on the other side are very skillful at putting out negative information and often distorting the records of conservative nominees. We’re going to make sure that the positive story gets out there.

NAN ARON: Well, what President Bush could do is what Sean says he might do, which is to pick a nominee in the mold of Scalia and Thomas. Or to pick a nominee similar to his Court of Appeals judges, like Janice Rogers Brown, Priscilla Owen, William Pryor, but what he should do is to realize the very momentous decision he has to make, to realize that he governs a country that is extremely big, that is filled with people of divergent viewpoints, races, religions, and rise to the occasion, pick a nominee who can represent everyone in this country, and not simply one fringe part of the Republican Party. We’re calling on him to name someone who respects individual rights, who appreciates the progress America has made, someone who can make decisions that protect all Americans, and not side with special, big business interests.

AMY GOODMAN: We’re also joined by Interim President of Planned Parenthood Federation of America, Karen Pearl. P.P.F.A., Planned Parenthood, has a case before the next Supreme Court, the next session. Your response to the stepping down of Sandra Day O’Connor, and can you describe what’s at stake with your next case?

KAREN PEARL: Sure. We are, of course, very concerned that the Justice that did step down was Sandra Day O’Connor, because she was the critical swing vote. She was the Justice who really held in her decisions the Constitutional protection for women’s reproductive health. And so, right now, we see reproductive rights, women’s health and safety to be extremely in danger, and because we do have this case before the Supreme Court, Ayotte v. Planned Parenthood, we particularly are focused on the requirement, if you will, that the President choose somebody who is very much in the mold of Sandra Day O’Connor, who understands the importance, the primacy of keeping women’s health and safety and who will continue to uphold the fact that women ought to be healthy and ought to have medical procedures that are safe for them.

NAN ARON: I would just want to add I think Karen Pearl’s set out this issue just right. In addition to abortion rights, which are clearly critical issue in the upcoming hearings, there are also other issues at stake, as well. And I want to make sure that we focus on those, as well as what Karen Pearl has just described, worker’s rights, consumer protections, environmental protection, civil rights, women’s rights. You know, the next court is going to make decisions that affect every aspect of our life, every aspect. Choice, whether or not we have privacy in our homes, whether or not we have safe workplaces, whether the water we drink is clean. So, in addition to choice, we need to make sure that the administration and in particular the nominee, is forthcoming on his or her views on a whole range of issues, including Roe v. Wade.

AMY GOODMAN: What do you think, Sean Rushton, Executive Director of Committee for Justice, is the most critical issue that your organization, your constituency, feels most strongly about?

SEAN RUSHTON: I think, broadly, the idea, if you are just listening to the rhetoric of the two ladies, I think it’s clear that it’s a difference of vision, really, between a court that is limited, and it really is a judicial body, as opposed to a political and cultural body. I think, you know, what their view is, is that it should be this kind of great platonic guardianship that makes all sorts of decisions in American life. I think what the conservative view of the law is, which is by the way, I would say, not so much a political category as much as it is sort of one of jurisprudential philosophy, is that the court really should be confined to absolutely defending the rights that are in the Constitution. For example, I would cite property rights. That’s something that’s in the Constitution. We have just seen it eviscerated by the — primarily by the liberal wing of the court. I would say, you know, so anyway — to answer your question, I think the answer is limiting the power of the court back to something that comports, I think, better, with our Constitutional system. That’s the big issue overarching everything else.

AMY GOODMAN: We’re going to continue our discussion about the replacement for Sandra Day O’Connor in the nation’s highest court when we come back from our break. Our guests are Sean Rushton, Executive Director of Committee for Justice; Nan Aron, President of Alliance for Justice; and Karen Pearl, the Interim President of Planned Parenthood Federation of America. We’re also going to find out exactly how the groups are mobilizing, what’s happening at a grassroots level.


AMY GOODMAN: We continue our discussion “After O’Connor.” Sandra Day O’Connor has resigned from the bench, says she will stay until a replacement is found. Our guests are Nan Aron; Nan Aron is head of the Alliance for Justice. Sean Rushton is with us, Executive Director of the Committee for Justice. And Karen Pearl, Interim President of Planned Parenthood Federation of America, which has a case before the next Supreme Court. How you’re organizing, let’s begin with Karen Pearl. On Friday, non-stop conference calls, meetings all through the weekend, this July 4 weekend, what are your plans at a grassroots level?

KAREN PEARL: We are very excited about our plans. We obviously have been preparing for a long time for a Justice to step down, whether it was going to be the Chief Justice or, as it became, Justice O’Connor. And so, we have a plan in place for every stage of this process that relies on all of the work that we have done over these past few years in all 50 states to get our activists onboard and mobilized. And so, we have strategies for being literally in the communities doing rallies, for activists to be using the internet to communicate with their senators, we have days of action planned throughout the summer and into the fall. We have people who are checking the media in their local markets so that they can correct misinformation through letters to the editor or to op-eds.

So, we have got a number of strategies that involve people in our communities, our patients, our grassroots activists and our large number of people who hold very influential positions in the community all ready to go to do a number of different actions as this process goes on. We have already contacted over a million of our supporters. We have campus — 170 campus chapters of students who are activists. And we have letters coming in, emails coming in. So everybody is in touch with the White House and with the Senate. And we believe that the voice for a moderate, thoughtful, deliberative, open-minded jurist, that message will come out loud and clear from Planned Parenthood supporters.

AMY GOODMAN: Sean Rushton, Executive Director of Committee for Justice, first can you explain what your group is, the umbrella of conservative groups starting with, what, something like $18 million in the discussion of how much money is going to be poured in overall, perhaps over $100 million. Tell us about when the Committee for Justice was established.

SEAN RUSHTON: We were created three years ago in response to the treatment of one of the President’s appellate court nominees, Charles Pickering, who was disgracefully linked to defending the Ku Klux Klan and called sympathetic to racists and all the rest. So the feeling on the right was there wasn’t a group that existed, sort of full-time, to counter the many groups that exist on the left to fight our nominees. So, we were created at that point. And we will do, I imagine, much of what was just described on the other side.

We’re not a grassroots group, as such, so we will be sort of working with and helping those groups, whether they be, you know, tax — anti-tax groups or anti-big government groups or business groups or social conservative groups, to put together their messages and to expand their grassroots networks out and to make clear why all of these diverse segments of the Senate right coalition are affected by this issue, and whether your issue is school choice or government regulation or social issues, that, yeah, that this is really a big fight and the other side sees it as — you know, for what it is, which is, you know, no-holds-barred kind of a exercise, so we need to be ready.

AMY GOODMAN: And who funds Committee for Justice?

SEAN RUSHTON: Our funding is, well, it’s private individuals, and it’s some members of the business community.


SEAN RUSHTON: Well, like — you know, I’m not going to list my donors by name. If Nan will list hers, I will list mine.

AMY GOODMAN: Nan Aron, who funds the Alliance for Justice.

NAN ARON: We have funding from individuals, foundations. You know, it’s no surprise that business groups are dumping so much money into this campaign. They’re hoping that these courts around the country, as well as the Supreme Court, become business-friendly courts. Our unprecedented effort on the progressive side contains more than 70 organizations, representing millions of Americans, labor, environment, civil rights, consumer groups, environmental organizations. I think we — while they may have the money, we certainly have the advantage of representing so many people around the country that are going to weigh in on this momentous decision.

AMY GOODMAN: How you are going to organize?

NAN ARON: Well, already these organizations are hiring organizers, doing communications work, getting messages out over the internet, getting hold of individuals who can talk to senators. The most important people in this effort will be those 100 senators. And we on the progressive side cannot just assume because President Bush won the election that we turn to electoral politics in two years. We have got to engage now in this effort to make sure that our judges are fair and independent, and so we all need to be working, calling people on our — calling our people, putting people on our list, getting involved.

AMY GOODMAN: Now, President Bush may be at an all-time low for support, but it may go lower, so he has his chance now to put in the most conservative person possible.

NAN ARON: Well, he certainly, again, could do what I think Sean Rushton expects him to do, which is to put a nominee on the court who has a very clear, distinct political agenda. I think that would be shameful and I don’t think it would be in the best interest of America. We’re calling on him to put someone up who represents all of America, not just Sean Rushton’s groups.

AMY GOODMAN: Karen Pearl, Interim President of Planned Parenthood Federation of America, one of the people who has been mentioned as a possible candidate for Supreme Court Justice is Alberto Gonzales, who made a surprise trip to Iraq this weekend, Attorney General of the United States. While his name has been very much in the news because what many people say is laying the legal groundwork for the torture by saying the Geneva Conventions don’t apply, when there are objections raised to him right now, interestingly from conservatives, it’s that his position on abortion may not be tough enough. What is your understanding of Alberto Gonzales’s position on abortion?

KAREN PEARL: We’re not really prepared at this moment to talk about any particular nominee. What we are willing to say is that we will not accept any extremist or right wing ideologue as a nominee. We must make sure that whoever is put forward by President Bush is somebody who will protect women’s health and safety. And so, we will go through a careful process before we make any comment about specific nominees to vet where they stand on protecting women’s health and women’s safety.

You know, you mentioned earlier that President Bush is at an all-time low. This is a real opportunity for President Bush to really stand with the American public who really want to preserve individual rights and individual liberties, and to pick a Justice who will do that as opposed to a Justice who will take an extremist position. And so, we are also, as Nan Aron said, really asking the President to hold to his promise of finding a Justice that all Americans can be proud of, somebody who will protect the individual liberties that we have come to value at the very fabric of the American life.

AMY GOODMAN: On that issue of Alberto Gonzales, Sean Rushton, your response?

SEAN RUSHTON: Well, my organization will support General Gonzales if he is the President’s choice. It’s as simple as that.

AMY GOODMAN: What do you think of him before he is named as the President’s choice?

SEAN RUSHTON: I think he’s a good man. I think we think he would be a fine addition to the court.

NAN ARON: Well, I’m sorry that Sean has said that. I think there’s a lot about Alberto Gonzales that we don’t know and the American people have a right to know. He was one of the chief architects of our policies on torture in the United States. I don’t know that we really have a full understanding of his views on civil rights, women’s rights, the right to choose. Our poll released last week shows American people want the Senate to conduct a broad, independent inquiry, and it will be up to Gonzales, if he is the nominee, and the administration to be forthcoming on these issues, as well as many others.

AMY GOODMAN: Can you talk about some of the other choices. Sean Rushton, for example, Judge Roberts. Can you talk about who he is, John Roberts, one of the names that has been put forward, also a friend of President Bush?

SEAN RUSHTON: Well, he is a judge on the D.C. Circuit. He is regarded as a solid thinker, someone of a likable disposition, and a good Constitutionalist. So I think he has a very good chance of being in the top tier of —

AMY GOODMAN: What does a “good Constitutionalist” mean?

SEAN RUSHTON: Well, it goes back to what I said at the beginning. It’s really the distinction between, I think, the other side’s view, which is that the court should act more as a political and cultural arbiter, handing down decisions that don’t necessarily directly relate to the text of the Constitution versus the more conservative view, which is that the legislative process is where most new law should be made and that the courts really should be in the business of protecting the Constitution as it stands, and as it’s written.

AMY GOODMAN: Nan Aron, Judge Roberts.

NAN ARON: Well, Judge Roberts, there’s much that we don’t know about Judge Roberts. And again, getting back to my earlier point, it’s important that the American people and particularly the Senate come to understand what John Roberts thinks and where he stands on the issues of the day. I will say this, though: I do believe for any nominee, if that individual is hostile to individual rights, protections and freedoms in this country, we will call on the Senate to defeat that nominee. However, before we even get there, it is incumbent on the Senate to let the American people know who these nominees are and allow for the broadest possible hearing of scrutinizing aspects of the nominee’s record. It is incredibly important given that this person will help shape the future of our country and our judiciary for decades to come.

AMY GOODMAN: What about the issue of the questioning? The New York Times raised this, for example, Arlen Specter, well known during the Bork confirmation process, questioning him for something like an hour-and-a-half. What do you think should be the form of this hearing, and what is acceptable, and how can you put pressure on senators to actually raise the issues you care about? The democrats have not stood up very much. I mean, if you look at the examples of the invasion of Iraq, etc., the word standing up would not be one that would be first in thinking of.

NAN ARON: Well, you know, this is the most important domestic decision that President Bush will have made so far in his presidency. Poll after poll shows that the American people do not want the Senate to be a rubber stamp, that they want the senators to be able to understand who the nominee is and where he or she stands on many different issues. Therefore, it will be incumbent upon the Senate, and we are counting on Senator Specter, Chairman of the Judiciary Committee, to conduct a fair and thorough hearing so that these issues of temperament, judicial philosophy, Constitutional philosophy can be fully explored. After all, this person will sit on this court not just for the next two or three years but perhaps decades to come. And we all, as Americans, have a right to know what this person thinks and what this person will do once confirmed to the Court.

AMY GOODMAN: Sean Rushton, what senators can you absolutely trust, do you think you absolutely have in your court, and who needs to be worked on?

SEAN RUSHTON: That’s a long list, I think. You know, well, let me mention a few senators, in particular. I think the senators that we’re most interested in, aside from most of the republicans, I believe we are starting from the assumption that we have pretty much all of the republicans likely to support the President’s nominee, but we’re also interested in — and this goes back to the issue of consultation, as well — a reaching out to more moderate democrats, not the liberal wing of the Senate democrats or people like Ben Nelson from Nebraska, Mark Pryor of Arkansas, maybe Joe Lieberman, Bill Nelson of Florida. Those are democrats that I think will be more reasonable on this issue, who are not pushed by the, you know, by the liberal interest groups, to, you know, hatchet job the nominee, and, so, you know, there are about ten Senate democrats, at least, who I think are very open to reasonable debate.

AMY GOODMAN: And this issue of the filibuster. Was this a compromise or agreeing not to filibuster or did the democrats lose out entirely? What actually will happen? I mean, obviously the Senate, the democrats are in the minority in the Senate?

NAN ARON: Well, we certainly believe, and some of the —-many of the signatories to that deal have said that the filibuster lives and will be able to be applied in any forthcoming Supreme Court nominations. Certainly, though, if President Bush names an individual who would shift the ideological balance on the court to the right, placing in jeopardy individual rights and freedoms, we would fully expect there to be a fight. Maybe we don’t even need the filibuster. You know, I have been talking about the role of the President and his momentous decision. This is also a decision that’s going to be made by 100 Senators. And during Court of Appeals debates in this country, most people tend not to focus on the merits of a debate on a Court of Appeals nominee. Supreme Court is different. The nation’s attention will be focused on who the nominee is and the very important seat for which that person is being nominated. American people will look at this, will study, will watch these hearings on TV. This will not be an easy vote cast by a senator. And we’re also looking to these senators to think of this vote as perhaps the most important vote they will take, as well. Some of them are up next year, and their constituents will be looking very closely at what they say and what they do.

AMY GOODMAN: Well, I want to thank you all for being with us, Nan Aaron, President of the Alliance for Justice, Karen Pearl, Interim President of Planned Parenthood Federation of America, and Sean Rushton, Executive Director of the Committee for Justice.

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