Supreme Court Battle of a Lifetime

Reproductive rights, environmental protections and civil liberties could all be in danger if the one or two rumored vacancies on the U.S. Supreme Court this summer are filled by right-wing Bush nominees.

With many Supreme Court decisions on key issues in the pipeline, and many decisions that could be overturned, conservative and progressive groups are already in high gear preparing for the likely vacancies, after hearing of the impending retirements of Justices Sandra Day O'Connor, 73, and/or William Rehnquist, 78.

On the left, a coalition of groups including the Alliance for Justice, People for the American Way, Naral Pro-Choice America Foundation and the Leadership Conference on Civil Rights have started lobbying, grassroots mobilizing, fundraising and public awareness campaigns to make sure they and their constituents have a say in who is appointed to the Supreme Court.

The Loss of Choice

On June 8, Naral launched a national TV ad campaign. The 30-second spot depicts a woman reading a newspaper with the headline, "Abortion Outlawed! -- Court Overturns Right to Choose," and then goes back in time through the political events leading up to the decision. The ad ends with a voiceover saying, "There's still time to protect your right to choose."

Naral hopes that the ads, part of a multi-million dollar campaign called Choice for America, will help prevent the storyline in the commercial from becoming reality. Naral is also launching an internet campaign and will begin running shorter statewide TV spots in Oregon, Wisconsin and Iowa in mid-June. Naral notes that the Supreme Court and Congress are already teetering on the brink as far as supporting reproductive choice, and that 300 anti-choice laws have been passed in states in the past few years.

"The likelihood that there will be vacancies on the Supreme Court in a matter of weeks is extremely high," said Naral president Kate Michelman in a statement. "The moment is upon pro-choice America to come together to save our liberties and our constitutional freedoms.'"

Respect for the Environment

The Alliance for Justice, a D.C.-based group with the specific mission of examining judicial nominees, has hired extra staff to work on the Supreme Court issue and has compiled dossiers of background information on eight potential nominees.

The Sierra Club is also running an intense lobbying campaign of its own, aimed at ensuring that justices friendly to the environment -- or at the very least moderate on environmental issues -- fill any Supreme Court vacancies.

"The court is so divided right now, the biggest impact would come if Sandra Day O'Connor retires," noted Sierra Club senior attorney David Bookbinder. "She's one of two swing votes. If Rehnquist retired it wouldn't really matter because he's so conservative anyway, it would be hard for Bush to find someone more conservative. But then that could be an opportunity to get someone better on."

Bookbinder noted that while it may be unrealistic to get a real pro-environment nominee on the court, the Sierra Club hopes to prevent the nomination of hard-line conservative candidates with no respect for the environment. "We approve the president's nominees most of the time; we are very flexible," said Bookbinder. "It's the real crazies we have a problem with. We have had some big battles."

Stepping Down

The last time a justice retired was 1994, when the retiring Harry A. Blackmun was replaced by Stephen Breyer. This nine-year interval between appointees is the longest since 1823. Day O'Connor and Rehnquist, both Republicans, would be likely to step down during Bush's presidency rather than after it so he can appoint a Republican in their places.

The Bush administration has reported that while there are dozens of potential nominees to fill the vacancies, there are under 10 likely candidates so far. There is a 51-48 Republican majority in the Senate (along with one independent), but on several lower court nominations Democrats have filibustered to block votes on at least two right-wing Bush nominees. Conservative groups are afraid Democrats will do the same thing with right-wing Supreme Court nominees, so they are trying to change filibuster rules, saying the potential to filibuster means there is a de facto need for a 60-vote majority (enough to break a filibuster) for a win.

Progressive groups note that Bush previously stated he would be looking for new Supreme Court justices along the lines of conservatives Clarence Thomas and Antonin Scalia -- both strong opponents of reproductive choice and other progressive causes.

Big Battles Ahead

The groups are combining their campaigns aimed at the Supreme Court with campaigns to influence nominations on the lower courts. Among other things, People for the American Way, a 600,000-member social justice organization, has been spearheading a campaign to prevent the confirmation of William Pryor, the former Alabama attorney general, for the Eleventh Circuit U.S. Court of Appeals in Alabama. Pryor's record as attorney general included undermining Congress's authority to prohibit discrimination, protect separation of church and state and protect the environment, according to People for the American Way. Pryor called Roe v. Wade, the 1973 decision legalizing abortion, "the worst abomination of constitutional law in our history." Pryor has also filed a brief urging the U.S. Supreme Court to uphold Texas's Homosexual Conduct Law, which permits gays and lesbians to be arrested for having sex in their own homes.

"We're definitely preparing for a Supreme Court vacancy or two," said Ralph G. Neas, president of People for the American Way. "We're working in coalition with dozens of organizations representing reproductive choice, defending and promoting constitutional rights and liberties. We're researching all the possible nominees mentioned over the past year or so, doing exhaustive examinations of their backgrounds, looking at their records and what they'd likely do in court."

Neas noted that in 2000, People for the American Way did a series of TV and print ads relating to the Supreme Court, and now they are running an internet campaign including a web page with information on all the possible appeals court and Supreme Court nominees.

"We want to be ready," Neas said. "We have to be prepared for the worst. If he names someone like Thomas or Scalia, a lot of things could be overturned. There are over 100 Supreme Court decisions that could be overturned, having to do with rights and privacy, liberty issues, campaign finance reform, economic justice, the right to choose. It's really important for all organizations and individuals to articulate what's really at stake and acknowledge the court has a daily impact on every aspect of our lives. This will have an impact on the country for decades to come."

He noted that justices normally serve six to seven judicial terms, or 25 to 40 years, with their reach extending far beyond the term of the president who nominated them.

Not Fit to Judge

The Sierra Club has also been preparing for the Supreme Court battle with campaigns aimed at lower federal courts. "We're working with a lot of other groups to oppose extreme lower court nominees, partly on their merits and partly as a way to organize and galvanize people, to get the Senate prepared for what will be bigger vacancies on the Supreme Court," said Bookbinder. "We have a massive grassroots effort to get all our members to contact their Senators."

For example, Bookbinder said California Senator Dianne Feinstein voted against conservative Ninth Circuit appointee Carolyn Kuhl "because she had gotten 30,000 emails saying this person is not fit to be a federal judge," he said. "Senators respond when their constituents start getting massively upset. If we can do that for a Circuit Court nominee, we can do even more for the Supreme Court."

Neas noted that along with lobbying senators, progressive groups need to remind the general public how crucial the Supreme Court is. "We don't want people waking up two years from now to find that the fundamental rights and freedoms they thought were theirs forever are gone overnight because of a Supreme Court decision," he said. "We need to educate the American public about precisely what's at stake."

Kari Lydersen writes for the Washington Post and is an instructor for the Urban Youth International Journalism Program in Chicago.

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