LifeLink: U.S. Supreme Court Judicial Nominations

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October 2005

President Bush has consistently emphasized the importance of nominating strong judges. “Because courts must always deliver impartial justice, judges have a duty to faithfully interpret the law, not legislate from the bench,” the president explained during his 2005 State of the Union address. Noting the president’s past nominations, many of whom have been denied confirmation hearings due to their Pro-Life convictions, Pro-Lifers can be confident that the President will always put forth nominees who interpret the Constitution, rather than re-write it.

Abortion—and the Roe v. Wade decision in particular—will be the main issue on which the Senate will focus while reviewing Supreme Court nominees. Pro-abortion organizations and liberal politicians are voicing their concerns that Roe v. Wade will be overturned. Important to note, however, is that, even if Roe v. Wade were overturned, abortion would not be banned. The pro-abortion Center for Reproductive Rights explained, “A Supreme Court decision overturning Roe v. Wade would not by itself make abortion illegal in the United States. Instead, a reversal would remove federal constitutional protection for a woman’s right to choose and give the states the power to set abortion policy.”

Commentators have also been stating that the Supreme Court has been divided 5-4 on Roe v. Wade. However, this is a misrepresentation. While six of the current justices support reaffirming the 1973 Roe v. Wade ruling that overturned laws prohibiting abortion nationwide, the justices are divided 5-4 on the issue of partial birth abortion. In 2003, President Bush signed into law a federal ban on partial-birth abortion, but enforcement of the ban has been blocked by litigation in the lower courts which is actually headed back to the Supreme Court. The President’s nominees may very well cast the deciding vote to determine whether this brutal abortion method will remain legal.

Current Vacancies

The summer of 2005 brought two vacancies to the U.S. Supreme Court. In July, Justice Sandra Day O’Connor announced her retirement, and, in September, Chief Justice William Rehnquist passed away after battling thyroid cancer. Justice O’Connor was considered a moderate judge who supports reaffirming Roe v. Wade. Chief Justice Rehnquist was a conservative judge who had established a strong Pro-Life record with his opposition to abortion; he was one of just two justices who dissented in the Roe v. Wade ruling. The Pro-Life and pro-abortion communities recognize that the next justice appointed will greatly impact the future of abortion in America.

Nomination Process

Supreme Court justices are appointed to their position for life. The procedure for appointing a justice is provided for by the Constitution (Article II, Section 2, clause 2), stating that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.” The President and the Senate share that power. Also, although not mentioned in the Constitution, an important role is played by the Senate Judiciary Committee before the candidate is questioned by the full Senate. Hence, the President of the United States first nominates a candidate for the position of Supreme Court Justice. Once the president releases the name of his nominee, the Senate holds hearings. Until the 20th century, these hearings were held behind closed doors. However, since 1930, the confirmation hearings have been completely open to the public. Since 1981, the hearings have even been televised. After the hearings, the Senate will then vote either to confirm or reject the candidate. The majority of Supreme Court nominees are approved by the Senate; only 12 out of 148 candidates have ever been rejected.