Judy Appelbaum

(WOMENSENEWS)–Supreme Court justices who plan to retire from their lifetime appointments traditionally announce it at the end of the court’s session, which is June 30.

Next week attention will be fixed on the nine-member court, where the retirement of one or more justices could blast open a delicate compromise agreement made barely four weeks ago by 14 senators seeking to prevent a period of partisan stalemate in the upper house.

“Given the ages and health of the justices on the Supreme Court, it’s not so much a matter of ‘if’ but ‘when,'” said Stephen Hourahan, spokesperson for Senator Lincoln Chafee (R-RI), a member of the Judiciary Committee, about potential retirements.

The Supreme Court has not had a vacancy since in 1994 when President Clinton appointed Stephen G. Breyer to replace a retiring Justice Harry A. Blackmun.

At stake in filling the next vacancy is women’s right to make their own reproductive decisions, as expressed in the 1973 case of Roe v. Wade.

If a moderate jurist, such as Justice Sandra Day O’Connor, retires and is replaced with an anti-choice nominee, the high court will lose a fragile majority that has restricted abortion but kept it as a legal option when a mother’s life or health is at risk, or when fetus cannot live on its own. Those decisions could be revisited again as early as the term beginning in Fall 2005.

Also at issue are rights to privacy in intimate decisions, including the use of contraception, as well as equal opportunity laws, civil liberties, same-sex relationships and religious encroachment on the public sector.

Last-Minute Compromise

On May 23, 14 senators released a last-minute compromise on the handling of judicial nominations. The nine-paragraph agreement by seven Republicans and seven Democrats was designed to stop Republicans who were on the brink of banning senate use of the filibuster, a traditional technique to block controversial measures that do not have the support of at least 40 senators.

Shutting off a filibuster requires the vote of 60 senators. With the Republicans controlling 55 seats, the GOP leadership was considering the extreme measure–hyperbolically dubbed the nuclear option–of ending the filibuster altogether.

Most Supreme Court justices have been approved by over 70 senators, according to research by Senator Chafee, one of the compromise signers. An exception was the conservative Justice Clarence Thomas, who drew only 52 votes in 1991, said Chafee spokesperson Hourahan.

By preserving the filibuster, the 14 senators may have helped to prevent an especially rigid or narrow-thinking justice from taking a seat on the highest court.

“If there is a bad nominee for the Supreme Court, we certainly want senators who oppose it to use all of the power at their disposal and they will be able to filibuster,” said Judy Appelbaum, vice president and legal director of the National Women’s Law Center.

But senators who signed and crafted the compromise, the so-called Gang of 14, agreed that the filibuster will be used only under “extraordinary circumstances.”

With those two key words open to interpretation, if any one of the Gang of 14 decides that “extraordinary circumstances” warrant the use of the filibuster but other signers disagree, the compromise commitment can be dissolved. The nuclear option permitting approval of a justice by 51 senators (or 50 senators and the vice president in his role as tie-breaker) can rise again.

Substantial Disagreement

Already, substantial disagreement is emerging.

One conservative signer, Senator Michael DeWine (R-OH) indicated that appointments to lower courts in the past month–since the filibuster compromise–have laid the groundwork for the naming of a conservative anti-choice justice to the high court.

“There’s been a certain bar set. We can look at the six judges confirmed after this compromise to define ‘extreme circumstances,'” said DeWine spokesperson Jeff Sadosky.

DeWine has come under heated criticism by right-wing groups for entering into the compromise.

Among the judges approved since May 23, William H. Pryor, Jr., called Roe v. Wade an “abomination” and then confirmed the statement during his nomination hearing. Another, Priscilla R. Owen supported anti-choice legislation while a judge in Texas. Two others opposed equal opportunity laws for women or minorities.

Six signatories to the compromise–DeWine, two other Republicans and three Democrats–are anti-choice, based on a Women’s eNews review of ratings by NARAL Pro-Choice America and the National Right to Life Committee. Six
others–four Democrats and two Republicans–are pro-choice. The remaining two, both Republicans, have mixed records on choice.

The National Women’s Law Center disagrees with DeWine’s assessment that “extraordinary circumstances” are now defined.

Appelbaum argues that three appointments, including the anti-choice Owen and Pryor, were protected from the “extraordinary circumstances” standard because the compromise specifically assured their approval.

Horse Trade on Recent Nominations

“It was a horse trade,” said Appelbaum. “There is nothing that says they were not ‘extraordinary circumstances.’ It was a horse trade for dropping the nuclear option.”

She also believes that the stakes are higher for the Supreme Court, and so the threshold for “extraordinary circumstances” should be higher, as well.

Other senators see the agreement playing a different role altogether.

Senator Chafee, who is pro-choice, is focused on a provision that refers to language in the U.S. Constitution, mandating the president to seek the “advice” of the Senate in Supreme Court nominations. That part of the compromise encourages the president to consult with Democrats and Republicans prior to submitting a judicial nomination.

“We hope to engage the White House in the ‘advice’ part and have president work more closely with the Judiciary Committee to hash out who would be appropriate, and to put forward someone who can muster bipartisan support,” said Chafee’s spokesperson.

So far that had not happened, according to another signer, Senator Robert Byrd (D-WV), who is pro-choice.

“It’s been several weeks,” said Jennifer Reed, a spokesperson for Byrd. “Senator Byrd was losing sleep over the ‘nuclear option.’ It’s been warded off to this point. It’s too soon to tell what will happen from here.”

Speculation about the Supreme Court retirements centers on the conservative Chief Justice William Rehnquist, who missed part of the term with cancer treatments. If he resigns, the Bush administration would name a new justice, and could either name that person or someone sitting on the bench as the chief.

Justice Rehnquist votes with the anti-choice minority and his replacement with another anti-choice justice will not completely tip the choice balance.

Cynthia L. Cooper is an independent journalist in New York with a background as a lawyer; she writes frequently about reproductive health and justice.

For more information:

National Women’s Law Center
If Rehnquist retires, does it matter who comes next? (Yes.):

Department of Justice–
Judicial Nominations – 109th Congress:

Pro-Choice Activists Wince at Senate Compromise:

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