Confirmation hearings will feature powerful struggle

Since Justice Sandra Day O’Connor announced her resignation from the Supreme Court of the United States I have found myself being asked several questions on an almost daily basis. The first is: Who will replace her? My answer is quite simple: someone the president picks.

The second question is whether Roe v. Wade will be reversed. My answer to this is a bit more complex. I tend to say that I think Roe will either become so limited as to have little further effect or eventually might be reversed. It is unlikely that Roe will be reversed immediately, since there has generally been a 6-3 majority in favor of retaining the rights of women to have abortions in some circumstances.

What I do think may happen is that a new justice may help to forge a new coalition on the court that will continue to restrict abortion rights under Roe. If pro-choice justices continue to retire, however, and conservatives maintain control of the presidency and Congress, then, eventually, Roe probably will be reversed.

A question that I have not been asked frequently is what the confirmation hearings on a new nominee to the court will look like. This is, I think, in many ways, the most interesting question. To answer this properly, it’s important to remember several things.

First, it’s been quite a long time, more than a decade, since the Senate Judiciary Committee considered a Supreme Court nominee. Some of the members were not in the Senate when Justice Thomas’ hearings were held. Further, I think that it is fair to say that the committee, like the Senate as a whole, is politically far more divided than it was during the last hearings on Justice Thomas.

Third, President Bush is far more interested in the Supreme Court and his legacy through Supreme Court appointments, than was his father. Fourth, President Bush’s advisers, especially Karl Rove, are far more sophisticated than were his father’s. It is hard to imagine that this president will be blindsided by undiscovered allegations about his nominee the way his father was about Justice Thomas.

The makeup of the committee promises to give rise to a fascinating dynamic during the hearings. On the Republican side, the majority of the members are quite conservative, including former committee chairman Sen. Orrin Hatch of Utah, Sen. Tom Coburn of Oklahoma, and our own Sen. Sam Brownback. On the Democratic side, the members are very liberal, including Sen. Joe Biden of Delaware and Sen. Patrick Leahy of Vermont (both former committee chairmen), Sen. Dianne Feinstein of California, and the senior senator from Massachusetts, Ted Kennedy, the most liberal of all.

In fact, every member of the Judiciary Committee is a powerful senator. Presiding over this split group is Sen. Arlen Specter of Pennsylvania, a moderate Republican. Indeed, Sen. Specter almost lost the chairmanship of this committee because of anger in his own party leadership when he earlier said that he would not be applying any “litmus tests” to nominees.

It seems relatively certain that any nominee will undergo close scrutiny by the committee and is likely to spark intense debate. There is simply too much at stake for both parties for any other scenario. Supreme Court justices serve for life. They have enormous power over the future of the legal system and, with it, over the future of the nation as a whole. We can be sure that every member of the committee will remember the Supreme Court’s role in Bush v. Gore, albeit with very different interpretations of that case.

So, when I am asked what I think the confirmation hearings are going to be like this time around, my answer is that they will certainly be lively. Every senator on that committee knows that this will give him or her important public exposure. Sen. Biden already has suggested that he will make a run for the presidency in 2008. Sen. Brownback, is currently “exploring” the possibility. Both of these men know that these hearings can be a great opportunity for them to attract national attention on key issues.

Other senators on the committee may well harbor as yet unspoken similar aspirations. In short, these hearings may well be one of the most important legal and political events of the decade. I, for one, intend to watch them carefully.