WORLDVIEW:In seeking a successor to the court's most venerable liberal, Obama will want a persuader, writes PATRICK SMYTH
WHEN LEGISLATORS in Nebraska last week passed the Foetal Pain Bill banning abortions beyond the first 20 weeks (based on disputed contentions from some doctors that foetuses feel pain by that stage of development), few were under any illusion that the legislation would enter into force any time soon.
In truth, the legislators’ stage was explicitly a much bigger one. The battle with which they have engaged is deliberately set to bring them to the US supreme court and the centre of one of the US’s most contested legal debates: the long-running bid to reverse the landmark abortion case, Roe v Wade. It set viability outside the womb as the cut-off point for permissible abortion – generally considered 22 to 24 weeks.
The Nebraska Bill, described by the pro-choice Centre for Reproductive Rights as “clearly unconstitutional and . . . the most extreme abortion law passed in this country in recent memory”, and five new initiatives in Oklahoma form part of the backdrop to US president Barack Obama’s delicate challenge of replacing supreme court justice John Paul Stevens (90), who is retiring later this year.
One Oklahoma Bill would force women to have an ultrasound of the foetus less than an hour before an abortion. A probe would be introduced into her vagina, with a doctor required to describe what was seen in the ultrasound to the patient. Another would facilitate the public identification of women who have abortions by requiring online publication of their circumstances and reproductive history, although not their names.
In recent days the president has been meeting some of the 10 most likely successors to the conservative court’s most venerable liberal. Replacing one liberal with another will not shift the fundamental 4-5 balance of the court. But Obama will be looking for someone ideologically sound and with a record as a persuader who, like Stevens, may be able to woo the court’s swing voter, Anthony Kennedy, in key cases.
Among those tipped most likely to succeed Stevens is US circuit judge Diane Wood, a former colleague of Obama’s in the University of Chicago’s law school. She has already been targeted by anti-abortion groups and Republicans for her pro-choice rulings. The Republicans can seriously delay the nomination at confirmation in the US Senate, where Obama no longer has a filibuster-proof majority, and they have said they will calibrate their opposition to the liberal record of any nominee.
Obama insisted this week that he would not impose a “litmus test” on abortion on candidates – lobby groups have no such scruples – although he said it was “very important” to have a supreme court justice who interprets the constitution as protecting individual rights.
“I will say the same thing that every president has said since this issue came up, which is I don’t have litmus tests around any of these issues,” he told reporters.
“But I will say that I want somebody who is going to be interpreting our constitution in a way that takes into account individual rights, and that includes women’s rights.”
He added: “Part of what our core constitutional values promote is the notion that individuals are protected in their privacy and their bodily integrity, and women are not exempt from that.”
It is a delicate line to draw – if not a litmus test, it is clearly close to one. “I think a litmus test is when you . . . ask a direct question about ‘Do you believe this, do you believe that?’,” White House press secretary Robert Gibbs argued somewhat unpersuasively to journalists.
“I think the president will ask any nominee to discuss how they view the constitution and the legal principles enshrined in it.”
And mutatis mutandis, as the lawyers say, for other hot-button issues from gun control to states’ rights and freedom of speech.
Indeed, the court made an important, deeply polarised ruling on freedom of speech in January (Citizens United v FEC), finding that curbs on donations to political campaigns violated the free-speech provisions of the constitution. It provoked a most unusual State of the Union denunciation from Obama of the court’s championing of special interests against the ordinary citizen.
The case, which will substantially reshape political campaigning, is a reflection of the high stakes involved in the battle for the soul of the supreme court.
But the close scrutiny of the broader judicial philosophy of a candidate for the court is par for the course, and was clearly acknowledged as such by the president’s predecessor, George Bush. Liberals are determined that Obama’s choice will be someone willing to challenge the “originalism” of justices Antonin Scalia and Clarence Thomas, who say the constitution should be interpreted in line with the meaning of its words when it was adopted.
A nomination is expected within weeks.