Editorial: The ball is in Bush’s court

Saturday, July 2, 2005 | 12:03 p.m.

WEEKEND EDITION

July 2-3, 2005

As the U.S. Supreme Court's term was coming to a close this summer, all attention was on Chief Justice William Rehnquist. There was intense speculation that Rehnquist, who is suffering from thyroid cancer, would step down. Instead, Justice Sandra Day O'Connor, the first woman appointed to the Supreme Court, announced on Friday that she would resign after 24 years on the nation's highest court.

O'Connor's departure is huge. She often has been the swing vote on a court that has become bitterly divided in recent years. While a battle of epic proportions was expected between liberal and conservative interest groups if Rehnquist were to retire, it will be even more intense with O'Connor leaving. Rehnquist frequently sided with the far-right conservatives on the court, notably Clarence Thomas and Antonin Scalia, so if Bush, a conservative president, were to pick someone whose judicial philosophy was in Rehnquist's mold, it likely would not have much impact on the court's overall makeup. But the departure of a mainstream conservative, as is O'Connor, is a wholly different matter. Whomever Bush selects to fill O'Connor's vacancy, it could have a far-reaching, lasting impact on critical issues such as privacy rights, abortion, religious freedom, free spe ech, police powers and the environment -- to name but a few.

One of O'Connor's most important decisions, and one that has come to symbolize her judicial philosophy, which acknowledges that not every legal issue is black and white, was her majority opinion in Planned Parenthood v. Casey. O'Connor, in that 1992 decision, upheld a woman's constitutional right to abortion, but at the same time she gave states more room to place limited restrictions on its use. O'Connor's decision happened to reflect the conflicting views that most Americans have about abortion -- they're not comfortable with it but they also believe that, in most cases, it ultimately is a decision for a woman to make.

The importance of having a consensus-builder on the court shouldn't be overlooked, either, and O'Connor knew how to bring sides together. With some exceptions, those elevated to the court are some of the brightest people in the land -- with egos to match. We're not suggesting that someone should water down his or her beliefs to reach common ground on constitutional issues. Far from it. But the court does need strong individuals who can work with one another to arrive at intelligent, well-reasoned decisions that the public will understand and abide by.

In the coming days, weeks and months we are going to hear a lot from conservative interest groups and the right-wing media saying that Bush should name someone who will put an end to "judicial activism" -- the implication being that O'Connor somehow was an activist. Of course, this is pure nonsense. O'Connor is a conservative and, as such, her legal opinions have shown restraint -- sometimes angering both liberals and conservatives, depending on the issue. Indeed, the term "judicial activism" often depends on whose ox is being gored. For instance, in the Terri Schiavo case, many far-right commentators and members of Congress excoriated federal appellate courts and the U.S. Supreme Court for refusing to intervene and overturn the original decision by the judge that allowed the woman's feeding tube to be removed. The Supreme Court has not moved to the left; some in the far-right conservative movement have become so extreme in their views that they try to tar anyone with the tag ! "liberal" who doesn't share their narrow-minded ideology.

One of the major issues in the last three presidential elections has been the Supreme Court -- namely, what kind of justice or justices would the candidates select if a vacancy arose. Soon the public will know what kind of justice -- or justices, if Rehnquist also steps down soon -- President Bush will nominate to the Supreme Court. The president should put forth a nominee who is acceptable to both Democrats and Republicans in the Senate, which until recently had been locked in a contentious debate over some of Bush's ideological nominees for federal appellate judgeships. We hope that President Bush will take his cue from President Reagan, who appointed O'Connor to the Supreme Court, and name a like-minded jurist who is brilliant, has integrity, has the right kind of temperament and whose judicial philosophy is in the mainstream of American thought.