Fourth Conservative on High Court Could Bring Changes

By Jeff Johnson | July 7, 2008 | 8:29 PM EDT

(1st Add: Clarifies ideological makeup of Supreme Court)

Capitol Hill ( - If President Bush nominates a conservative similar in judicial philosophy to Justices Antonin Scalia and Clarence Thomas to the Supreme Court, something Bush promised throughout his campaign, court watchers predict the nominee will survive the Senate Judiciary Committee and, if confirmed, will greatly change the face of the court.

Along with Scalia and Thomas, Chief Justice William Rehnquist comprise the conservative wing of the high court. Two other justices, Anthony Kennedy and Sandra Day O'Connor, often vote with the staunch conservatives but their votes are not as predictable. Justices Stephen Breyer, David Souter, Ruth Bader Ginsburg and John Paul Stevens make up the court's liberal faction.

Liberal and conservative pundits mostly agree on only two things regarding a possible vacancy on the Supreme Court: First, the nominee will emerge from the committee after scathing attacks by Democrats on a 10-9 party-line vote.

Second, if that nominee is confirmed, the decisions rendered by the court over the next 30 years could have little resemblance to those issued by the current court in the past 30 months.

John Nowacki, director of legal policy for the Free Congress Foundation, is one of many observers who believe Justice Sandra Day O'Connor is the most likely candidate for retirement.

"In the case of an O'Connor retirement, it would definitely have an effect on how the court rules in a lot of these cases that have come down as five-to-four decisions," he said.

If Bush is able to fulfill his campaign promise, it would be the worst nightmare for liberal special interests like People for the American Way (PFAW). The group's "Save the Court" website features this ominous warning:

"In the next few weeks, one or more of our Supreme Court justices could retire, opening seats that, with the Senate's approval, would be filled by President George W. Bush," the website states. "If he is allowed to put another justice like Scalia or Thomas on the Court, the effects on decades of progressive accomplishments would be devastating."

PFAW fears that conservative "textualists" such as Scalia and Thomas could "roll back the past 50 years of progress" on a number of pet liberal issues. The group fears the confirmation of a conservative justice would mean:

    The repeal of Row v. Wade , allowing states to decide whether abortion should be legal and, if so, under what circumstances;
    Recognition of an individual right to own and carry firearms in the Second Amendment, nullifying federal and state restrictions;
    Application of the First Amendment's "Establishment Clause" only to government efforts to promote religion, rather than blocking the involvement of religious individuals or groups in civic affairs;
    Barring the consideration of race in any government decision making, including eliminating so-called "affirmative action" programs that award preferential treatment to minorities;
    Striking down so-called campaign finance "reform" laws as unconstitutional limits on the free speech of donors and non-profit political groups; and
    Greater freedom for workers to refuse mandatory union membership and to demand that their union dues not be used to support political causes or candidates with which they disagree.

"The current Supreme Court's conservative majority has already begun to turn back the clock," PFAW writes, "adopting a new theory of states' rights and limiting remedies to discrimination."

Nowacki told that the current Supreme Court is "certainly not a conservative court.

"It is a court that definitely does put out a lot of activist decisions," he said.

"There have been a few cases where the court has held to principles of judicial restraint, particularly when they deal with federalism and 'Commerce Clause' issues," Nowacki added. "At the same time, we've seen a court that seems willing to bend over backwards to promote a particular social agenda."

Unlike PFAW, however, Nowacki believes it would be difficult to predict how a court with four conservatives, four liberals and one moderate would rule in specific cases.

"The important point is that, if there is a constitutionalist nominee confirmed to the Supreme Court, we will certainly see more of a consistency in decision making," Nowacki said, "a nominee who looks to constitutional principles to what the text of the Constitution or of the relevant statute actually says."

Senate Majority Leader Bill Frist (R-Tenn.) wrote to his colleagues on Wednesday, making it clear that he expects the Senate to cast a timely vote either to reject or confirm the president's pick should a vacancy arise on the Supreme Court this summer.

"[T]he Senate should act on any nominee within a reasonable time to ensure, if possible, that a new justice can assume office before the Supreme Court resumes hearing cases this fall," Frist wrote. "Any tactics to endlessly delay the process and prevent the Senate from performing its constitutional responsibility to vote on a Supreme Court nomination would be inconsistent with the Constitution and contrary to the Senate's traditional practice for more that 200 years."

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