Developments on the Supreme Court
Surprising many who had expected that 80-year-old Chief Justice William Rehnquist would be the one stepping down, Justice Sandra Day O'Connor on July 1 announced that she was retiring from the Supreme Court.
Her resignation created a vacancy on the Court for the first time in 11 years and gave President Bush his first opportunity to name a justice to the Court.
Rehnquist announced his intent to stay on the job in a statement made later in the summer. "I want to put to rest the speculation and unfounded rumors of my imminent retirement," he said July 14. "I will continue to perform my duties as chief justice as long as my health permits." The chief justice, who had thyroid cancer, died September 3.
Civil rights groups urged the president to choose consensus over division in making his nomination to replace O'Connor on this lifetime seat.
"The resignation of Justice O'Connor presents President Bush with two choices—continue the politics of confrontation and division or pursue consultation and consensus. It offers the President an opportunity to be a 'uniter not a divider,'" Wade Henderson executive director of the Leadership Conference on Civil Rights (LCCR) said.
O'Connor herself was a consensus candidate, recommended by Sen. Dennis DeConcini, a Democrat from Arizona, and nominated by President Ronald Reagan in 1981 to be the first woman on the Court. She was confirmed by a 99-0 vote.
While her nomination generated criticism from both the political left and right, during her time on the Court she proved to be a pivotal swing vote in decisions affecting civil rights, environmental protection, personal privacy, voting rights, protection against discrimination, and more.
Civil rights organizations identified a number of 5-4 decisions in danger of being overturned if O'Connor is replaced by someone who is not a mainstream nominee, including Grutter v. Bollinger (2003) (affirmative action); Tennessee v. Lane (2004) (rights of individuals with disabilities); Zadvydas v. Davis (2001) (human rights/due process); and Jackson v. Birmingham Bd. Of Educ. (2005) (Title IX).
Bush Nominates John Roberts
But civil rights advocates would prove to be disappointed by President Bush's nominee, D.C. Circuit Court Judge John Roberts. In time, disappointment would turn to serious concern, and for many groups, opposition.
Though Roberts' experience as a judge was limited, and his judicial record scant, documents from his time as a key legal advisor in the Reagan and Bush I administrations proved to raise troubling questions about his view on important civil rights issues such as voting rights, court-ordered desegregation remedies, and women's rights.
For example, an August 4 New York Times article reported on the "torrent of memorandums" Roberts wrote in the early 1980s promoting the Reagan administration's unsuccessful efforts to require proof of intentional discrimination in Voting Rights Act (VRA) cases. Civil rights advocates said that had Roberts' view prevailed, the number of people of color elected to public office would be much lower than it is today. They also noted that Roberts' attempts to sway the debate over the VRA raised questions about whether he would narrow long-standing interpretations of the law in ways that would limit the ability of minorities to stop those who would try to undermine or dilute their right to vote.
According to other reports, Roberts argued in the early 1980s that Congress was not only able to, but also justified in, enacting legislation that would strip the federal courts of jurisdiction to desegregate public schools. Civil rights groups pointed out that court-stripping offered those who opposed busing the most direct way to curb the courts in this area, and that Roberts' argument was a radical approach that raised questions among even some of Roberts' most conservative colleagues.
The Washington Post reported that, according to other Roberts documents, the Supreme Court nominee "resisted" women's rights efforts in the 1980s. According to the Post, at one point, Roberts questioned "whether encouraging homemakers to become lawyers contributes to the common good," a comment that "startled" women from across the ideological spectrum, from Eagle Forum President Phyllis Schlafly to NOW President Kim Gandy.
Civil rights groups also noted that Roberts, as acting Solicitor General, argued unsuccessfully against the FCC's affirmative action program, even while the FCC defended it, in a rare instance of the Solicitor General's opposing another federal agency in court. Roberts argued that the policy in question, affirmative action, wasn't only unconstitutional but "a policy in search of a purpose."
Civil rights organizations, including LCCR, said that concerns about Roberts' views on these and other issues were compounded by the White House's refusal to respond to Senate Judiciary Committee Democrats' request for records from Roberts' time at the political deputy to Solicitor General Kenneth Starr during the George H.W. Bush administration. Senators had asked for records involving 16 of the 81 Supreme Court cases in which Roberts wrote briefs during that time.
Noting that internal Solicitor General and similar documents for Robert Bork and William Rehnquist were released during the consideration of their judicial branch nominations, "What does the White House have to hide?" said Wade Henderson, executive director of the Leadership Conference on Civil Rights (LCCR).
The attorney general's office said that release of the documents would be "simply contrary to the public interest."
In addition to citing precedent for the release of similar records, civil rights groups pointed to comments from Senators that belied the application of any attorney-client privilege, including the statement of Sen. Orrin Hatch, R. Utah, on the Senate floor: "No statute or Senate or House rule applies the attorney-client privilege to Congress. In fact, both the Senate and the House have explicitly refused to formally include the privilege in their rules. . . . This body cannot simply take the President's claim of privilege against Congress at face value. To do so would be to surrender an important constitutional obligation."
"The Constitution gives senators the responsibility to make an independent evaluation of the president's nominees," said People For the American Way President Ralph G. Neas. "But they can't do their job if they aren't given access to records that will let them evaluate Roberts' approach to our Constitution and laws."
With Chief Justice Rehnquist's death, President Bush moved quickly to elevate Roberts to lead the Court. Civil rights groups said the nomination of Roberts as chief justice raised the stakes significantly, adding additional pressure on the Bush administration to release all records relating to documents that had been requested by senators.
The chief justice's powers and responsibilities exceed those of the eight associate justices. These powers include the power to assign the writing of the Court's opinion in each case where the chief is in the majority; the power to determine how many and which cases the Court hears; and the power to preside over the private meetings at which the justices decides how they will vote in a particular case.
Hearings on Roberts' nomination, which had been postponed in light of Rehnquist's death, began September 12. In testimony September 15 before the Senate Judiciary Committee, LCCR's Henderson said that in four days of hearings, Roberts had "failed to distance himself from the anti-civil rights positions he has advocated" and therefore LCCR was compelled to oppose his confirmation.
In the face of opposition from other lawmakers, including Minority Leader Harry Reid, D. Nev., and numerous civil rights and women's rights groups, the Senate Judiciary Committee voted (13-5) to endorse Roberts. On September 29, the Senate confirmed (78-22) John Roberts as chief justice of the United States.
Bush First Chooses White House Counsel Harriet Miers, then Judge Samuel Alito, as O'Connor Replacement
Just before the Supreme Court was to start a new term with a new chief justice, President Bush named White House Counsel Harriet Miers to fill O'Connor's slot on the Court.
Once President Bush's personal lawyer in Texas, Miers had never served as a judge. She was appointed White House counsel in 2004.
Less than a month later, and just before she was expected to respond to a second questionnaire from the Judiciary Committee, after her answers to a first questionnaire were criticized by Senate Judiciary Chairman Arlen Specter, R-Pa., and ranking Democrat Patrick Leahy, Vt., Miers withdrew her nomination from consideration.
President Bush said he accepted Miers' decision "reluctantly," placing blame for the withdrawal on calls by senators for access to internal documents concerning advice provided during her time at the White House.
However, opposition to Miers, which had grown in intensity in recent days, had come from many of the president's own supporters, who questioned her qualifications and her ideology. Wade Henderson, executive director of the Leadership Conference on Civil Rights, said the circumstances under which the Miers' nomination was withdrawn were troubling.
"The combination of a radical right litmus test and a stubborn White House deprived all of us - from president to Congress to the American people - the chance to fairly assess Miers. That is a state of affairs that no one should celebrate," Henderson said.
Miers' hearings in the Senate were scheduled to start November 7. On October 30, President Bush announced his new nominee: Samuel Alito, a judge on the U.S. Court of Appeals for the Third Circuit. Civil rights groups said that Miers' withdrawal—followed by the nomination of Alito, a nominee who was embraced by the right wing—raised serious questions about the president's commitment to the fundamental principle of an independent Court.
