US Senator Dodd and Kennedy hold news conference in Washington DC
Mannie Garcia  /  Reuters
Sen. Edward Kennedy, D- Mass., right, and Sen. Chris Dodd , D-Conn., discuss the O'Connor vacancy at a Capitol Hill briefing Friday.
By Tom Curry National affairs writer
msnbc.com
updated 7/1/2005 4:31:30 PM ET 2005-07-01T20:31:30

The long-awaited battle now begins.

With the announcement Friday that Sandra Day O’Connor is retiring, the pent-up expectations will be fulfilled: This capital city and the nation are headed for a defining ideological struggle over the Supreme Court.

At stake is Bush's ability to keep his campaign pledge (made both in 2000 and 2004) to move the court in a more conservative direction.

If history is any guide, Bush is likely to get his nominee confirmed: Eighty percent of all Supreme Court nominees have been approved by the Senate.

But Senate Democrats and liberal advocacy groups immediately fired a warning shot across the president’s bow.

Sen. Edward Kennedy, D-Mass., and Sen. Chris Dodd, D-Conn., indicated that if the person Bush nominates to replace O’Connor does not resemble her ideologically, the Democrats reserve the right to use extended debate — the filibuster — to block the nominee from ever getting a confirmation vote.

“If the president abuses his power and nominates someone who threatens to roll back the rights and freedoms of the American people, then the American people will insist that we oppose that nominee and we intend to do so,” Kennedy said.

“I reserve all options,” Kennedy added a few moments later.

Filibuster a live option
Fourteen senators signed a bipartisan accord May 23 in an effort to avoid judicial filibusters. But even under that agreement, Dodd said, they retain “the option of having extended debate." (Dodd himself did not sign the accord.)

“The issue of filibusters becomes moot” if Bush names someone resembling O’Connor, Dodd told reporters.

Apart from her well-known support for abortion rights, the retiring justice has voted to uphold the use of racial preferences in law school admissions and just last week voted to ban displays of the Ten Commandments on government property.

The threshold decision Senate Democratic leaders now face is whether the political benefits of a filibuster of a nominee outweigh its costs if Bush nominates someone Democrats figure they can’t defeat on a confirmation vote.

While it takes 51 out of 100 to win confirmation, it takes 60 votes, a super-majority, to overcome a filibuster.

As few as 41 senators could block Bush from replacing O’Connor.

“My own instinct is that we will not have a filibuster here,” Judiciary Committee Chairman Sen. Arlen Specter, R-Pa. told reporters within minutes of the O’Connor announcement. “You really can’t become involved in a filibuster on an eight-person court and have four-to-four decisions. So many (decisions) are now 5 to 4. You’d have a dysfunctional court” if O’Connor’s replacement were blocked by a filibuster.

Asked whether there is a public expectation that O’Connor will be replaced by someone with like-minded views on issues such as abortion, Specter said, “There are so many publics, and there are so many expectations.”

'A very polarized country'
He added, “This is a very polarized country when it comes to the issues which come to the Supreme Court of the United States. I would expect people to want their choice, but everybody can’t have their own way. That’s why we have a president, and that’s why we have a Senate.”

Democrats used the threat of a filibuster to block votes on 10 Bush appeals court nominees in 2003 and 2004.

If there is no Democratic filibuster of O’Connor’s successor, then the crucial swing voters in the Senate can be dubbed “five plus two.”

The "five" are the handful of liberal to centrist Republicans from the East Coast: Susan Collins and Olympia Snowe of Maine, Lincoln Chafee of Rhode Island, John Warner of Virginia and Specter. All of them support the 1973 Roe v. Wade decision that legalized abortion. Snowe and Chafee are up for re-election next year in states which Democrat John Kerry carried with 53 percent and 59 percent of the vote, respectively.

The "two" are Sen. Ben Nelson of Nebraska, a Democrat who frequently votes with the Republicans, and Sen. Mark Pryor of Arkansas. Nelson and Pryor both oppose Roe v. Wade.

‘Extraordinary circumstances’
Collins, Snowe, Warner, Nelson and Pryor signed the May 23 accord, which says judicial nominees “should only be filibustered under extraordinary circumstances.” The accord left that phrase up to each signatory to define for himself.

Nelson leans to the conservative side on social issues: He has voted to move forward with consideration of a constitutional amendment to prohibit marriages between gays. He is up for re-election next year in a state that Bush carried with 66 percent of the vote.

Conservatives in the Senate will expect, even insist that Bush select a right-of-center nominee, someone who will not turn out to be another Anthony Kennedy or David Souter, Reagan and Bush I appointees who often join liberal rulings on social issues.

Liberals see this fight as a matter of protecting the Supreme Court as the last bulwark of what they consider progressive and enlightened thinking on social issues.

Conservatives point to the 2003 Lawrence v. Texas decision, written by Kennedy, which found a constitutional right to sodomy and conclude that the court has veered far from where most Americans sit in their interpretation of the Constitution.

For better or worse, the battle over the O'Connor vacancy is a battle over the big four social issues of American politics: abortion, the death penalty, religious expression, and legal protections for gays and lesbians.

The “originalists” — those such as Justices Antonin Scalia and Clarence Thomas who favor sticking to the text of the Constitution as originally written — say the document is clear on all four topics: the death penalty is specifically acknowledged and approved in the Fifth Amendment, there is no mention of a constitutional right to abortion or homosexual conduct, and the First Amendment’s limits on religion apply only to acts of Congress, not to state and local governments.

Warring camps on the court
But Scalia’s and Thomas’s adversaries, led by Stevens, promote what he calls “the evolving standards of decency” (a phrase first used by Chief Justice Earl Warren in 1958) — a flexible, ever-progressing interpretation that allows the Supreme Court to approve gay rights and prohibition of the death penalty in most cases.

In Stevens’s view, it is the Supreme Court’s task to gauge how American society’s “standards of decency” are evolving and then to move the law in that direction.

In a timely reminder that the fight over who takes O’Connor’s seat is truly a struggle over what will be permitted in your town and your home, the court last week in a 5-4 decision upheld the power of local governments to seize private property through the power of eminent domain.

In a ruling written by Stevens, with O'Connor dissenting, the court held that the cities could seize private homes when local officials want to turn the property over to privately owned development projects. The homeowner must be paid just compensation but will still lose his or her home.

Libertarians on both the left and right reacted angrily to that ruling.

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