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September 3, 2015 | 19th Elul 5775

The President’s Choice, The Supreme Court’s Future

July 5, 2005

JULY 5, 2005--Since Justice Sandra Day O’Connor announced that she would be retiring from the Supreme Court, the country’s newspapers, airwaves, kitchens and coffee shops have been filled with often heated discussions about the importance of her role on the Court and who the President will nominate to succeed her.

This time the red-hot rhetoric is justified.  The stakes are as high as the scores of e-mails clogging our inboxes claim they are.  And everyone, from all points on the political spectrum, is bracing for a bruising fight over the confirmation of Justice O’Connor’s successor.

A knock-down drag-out confirmation battle is not inevitable.  President Bush has it within his power to avoid a battle by presenting a consensus candidate, one within the broad judicial mainstream.  In doing so, he would be following the example of President Ronald Reagan.  With his first opportunity to select a nominee for the nation’s highest court, President Reagan chose a well-respected, moderate jurist who went on to be unanimously confirmed by the Senate.  That nominee, Sandra Day O’Connor, became one of this century’s most important Justices.  President Bush would do well to follow that example.

If, however, as seems likely, President Bush selects a nominee from outside the judicial mainstream, the stakes demand that we engage in the debate about the future of the Court.

The President does not select his nominee in a vacuum.  He does so after five years of working to reshape the Federal bench by nominating judges, for both the Circuit Courts and the Federal Courts of Appeal, who are committed to turning back the clock on a wide array of fundamental rights.  Judges such as William Pryor, Priscilla Owen, and Janice Rogers Brown (the latter two have been mentioned as possibilities for Justice O’Connor’s seat) have not been hesitant to use the bench to reach out and advance their own agendas.

As President Bush has remade the Federal courts, much of the Jewish community has stood on the sidelines.  With the important exceptions of the Reform Movement and the National Council of Jewish Women, groups within our community have simply “taken a pass” on the issue, citing a concern about the appropriateness of opposing judicial nominees.  In an ideal world, I would agree.  It would be far, far, better if the judicial nominating process were above politics.  Wishing, unfortunately, does not make it so.  Our community cannot afford such passivity today.

Justice O’Connor so often has been the decisive vote on the Court in support of fundamental rights:  religious liberty, civil rights, reproductive rights key among them.  How fitting that  in one of her final opinions, striking down the display of the Ten Commandments in a Kentucky courtroom, she wrote, “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?” 

Justice O'Connor is likely to be long remembered for her refusal to vote to overturn Roe v. Wade in Planned Parenthood v. Casey (1992). In that case, she and Justices Kennedy and Souter coalesced to create a middle ground between the Court's most conservative and liberal members, providing states greater leeway to regulate abortion but refusing to overrule Roe.

The threat to our fundamental rights is both clear and present. How soon might a new Supreme Court Justice have an impact?  The Court already has accepted a case for the next term, Ayotte v. Planned Parenthood, which challenges New Hampshire’s abortion parental consent rule.  The case provides a vehicle for those who wish to roll back abortion rights to do so.

If our community is to remain committed to advocating on behalf of the great moral issues of our time, including civil rights, women’s rights and religious freedom, it is no longer enough to look to the legislative or even the executive branches of government.  The Federal courts – and the Supreme Court chief among them – are the final arbiters of our rights and freedoms.  If we choose to remain silent and not weigh in during this vital process of selecting a new Supreme Court Justice, we do so at our own peril.

Robert M. Heller is Chair of Union for Reform Judaism’s Board of Trustees.  For more information about the Reform Movement’s work on judicial nominations, visit

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