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July 26, 2005

Conservative Christians Look for One of Their Own to Fill Supreme Court Vacancy
by Jon M. Sweeney

Justice Sandra Day O’Connor, 75, has announced her retirement effective at the end of the Supreme Court’s current term. She was appointed by President Ronald Reagan in 1981, but has often disappointed staunch conservatives who would prefer a more predictable representative on the Court.

After much speculation and backroom negotiating, on July 19, President Bush announced his nominee to replace Justice O’Connor: U.S. Circuit Judge John Roberts, Jr., 50, known primarily for his opposition to, and desire to overturn Roe v. Wade.

Religion News Service filed a story on the filling of O’Connor’s vacancy on July 1 that began: “For the Rev. Jerry Falwell, the battle to replace retiring Supreme Court Justice Sandra Day O’Connor isn’t quite Armageddon, but almost. ‘This is do or die,’ Falwell said.’”

The RNS story’s secondary headline stated: “Conservative groups say this is why they pushed for Bush’s re-election.” And that may be true, especially given that President Bush did not nominate Attorney General Alberto Gonzales, rumored to be his first choice, to fill O’Connor’s vacancy. Christian groups opposed the nomination of Mr. Gonzales given his weak record on the Texas appeals court in matters of abortion rights.

Two weeks ago, Dr. James Dobson and his powerful, nationwide Focus on the Family organization announced that they would organize opposition to other goals of President Bush and his administration if Bush nominated Gonzales rather than a candidate who more clearly supports conservative, Christian goals.

Christian leaders such as Dobson and Falwell clearly feel that they are due a Supreme Court justice to match their convictions—on abortion, opposing gay rights and marriage, public displays of religion, and other freedom of religious expression issues—in exchange for the role they played in the re-election of the president. They’ve made it clear that they want Bush to nominate an unambiguous conservative.

Conservative Christians also promise to pull out all of the stops to make the confirmation process a success. In President Bush’s nomination of Judge Roberts, he asked for a fair confirmation process. But Rev. D. James Kennedy, president of Coral Ridge Ministries in Florida, promises more: “We will not rest, we will spare no expense, we will leave no action undone in the service of restoring constitutional jurisprudence to America’s high court,” he said.

Justice O’Connor’s announcement came as a great surprise to both court observers and conservative and liberal activists around the country. All were awaiting news that Chief Justice Rehnquist, 80—who suffers from thyroid cancer and has been hospitalized repeatedly in the last twelve months—would announce his own departure from the land’s highest bench. Instead, O’Connor made her plans known. Rehnquist has since insisted that he will remain put for the foreseeable future.

The U.S. Supreme Court is presently as evenly divided as it has been in decades. Four of the justices are recognized as liberals (Breyer, Ginsburg, Souter, and Stevens), while four others are predictably conservative (Kennedy, Rehnquist, Scalia, and Thomas). As The Tablet, Britain’s Catholic weekly, recently reported: “Justice O’Connor has often been called the most influential person in America, because she has so frequently cast the deciding swing vote on a Court which for decades has been delicately balanced.”

Conservative Christian leaders are also taking their efforts to the airwaves. On August 14, various organizations are sponsoring what is called, “Justice Sunday II” (after a similar broadcast that was done in April of this year). Against the wishes of the White House, leaders such as Dobson, Charles Colson, former Senator Zell Miller, and Tony Perkins, president of the Family Research Council, are telecasting to churches and members of a national, conservative religious broadcasters’ organization to say that the high Court is hostile to religion and to Christianity.

The “Justice Sunday” group is unambiguously partisan, Republican. They claim in their written materials that Democrats are “against people of faith.” Senate Majority Leader Bill Frist, Republican from Tennessee, even addressed the first gathering back in April.

The most basic issue that divides religious conservatives and liberals on the matter of filling a Supreme Court vacancy is as old as the argument over how to interpret scripture. Dobson and Falwell, for instance, are the first ones to denounce liberals in the courts as “activist judges,” meaning that they attempt to create or change the law, rather than simply interpret it. Dobson and Falwell use the same argument with regards to Biblical interpretation, believing scripture can, and should, be strictly construed.

Liberals, on the other hand, see activism as having both liberal and conservative applications — resulting in judicial rulings that favor each contingency’s causes. In interpreting Constitutional law, they apply broader limitations.

Ancient debates such as these—with their roots in religious disputes—have a tendency to divide us along heavy lines.

Jon M. Sweeney is a writer and editor living in Vermont. His memoir, Born Again and Again: Surprising Gifts of a Fundamentalist Childhood is to be published next month. More by Jon Sweeney.

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