The map of the 2000 presidential vote—with states carried by George W. Bush colored red and states carried by Al Gore colored blue—was a map of liberal and conservative America. What defines the parties more than anything else these days is social issues: abortion, gay rights, affirmative action. Conservative and liberal positions are the most clear-cut in conflicts over race, sex, and religion.
Those are the most divisive issues in American politics. And the Supreme Court is at the center of those controversies. Moreover, the Court is closely divided. Several justices are believed to be considering retirement this year, including one who often casts the swing vote. "I'm getting up there in age, so of course I think about, should I or should I not?" Justice Sandra Day O'Connor told an interviewer this month. "But I haven't made the decision to do it."
Now the doctrine of pre-emptive action has struck the Supreme Court. One liberal group is already running TV ads to mobilize public opposition to any nominee who opposes abortion rights. "If Bush can put new judges on the Supreme Court, then Roe v. Wade is in danger," the narrator warns in an ad being run by the NARAL Pro-Choice America Foundation.
Conservatives are working up a countercampaign. Former White House Counsel Boyden Gray chairs the Committee for Justice, which is preparing to do battle on behalf of a nominee Bush has not yet named to fill a Court seat not yet vacant. "We're playing catch-up, to try to be able to provide the White House with some sort of counter to the attacks," Gray says.
Until the late 1980s, the Senate typically voted to confirm or reject Supreme Court nominees based on their qualifications, not their philosophy. When did the process change? In Gray's view, "It was the Bork nomination that really changed it, made it into something of a political circus." The Senate rejected President Reagan's nomination of Robert Bork in 1987 because his conservative views were considered too extreme.
The trick for President Bush will be to make the confirmation process nonideological. His father tried to do that when he nominated David Souter in 1990. Souter's views were largely unknown. Since joining the Court, however, Souter has often voted with liberals on such issues as abortion. Conservatives feel betrayed. And they are determined not to let that happen again. They want a nominee with clear conservative convictions—no more Souters.
The real political circus came in 1991 when the first President Bush nominated Clarence Thomas to the Court. Thomas's confirmation process turned into a battle over his behavior.
Why was Thomas confirmed even though Bork had been rejected?
In both years, Democrats controlled the Senate. Southern Democratic senators were the swing voters. Southern Democrats survive only with the support of black voters. Polls in 1987 showed that most blacks opposed Bork because they feared he would roll back civil-rights protections. Only two of 18 Southern Democratic senators voted to confirm Bork.
Thomas's confirmation battle turned into a virtual trial. To vote against Thomas, who is black, was to judge him guilty of sexual harassment—it was not to judge him unqualified to serve on the Court. Most African-Americans supported Thomas, even though his chief accuser was a black woman, because they saw him as persecuted. Eight of 17 Southern Democratic senators voted to confirm him.
Democrats are determined not to let a nominee's views and qualifications get sidelined again—no more Thomases.
Republicans now hold the Senate. If a Supreme Court vacancy does occur, moderate Republicans, such as Sens. Lincoln Chafee of Rhode Island and Olympia Snowe of Maine, will cast the swing votes. They survive only with the support of women. This year, the crucial question in any battle over a Bush nominee is likely to be, what do "soccer moms" think? They are the voters most likely to be sensitive to any threat to abortion rights. And that is why NARAL's pre-emptive strike ads target women.
But a poll of 3,300 women—conducted by Princeton Survey Research Associates in December and January and just released by the Center for the Advancement of Women—shows declining support for abortion rights. Only 30 percent of women endorsed the view that "abortion should generally be available to those who want it," down from 34 percent two years earlier. Fifty-one percent thought either that abortion "should be against the law, except in cases of rape, incest, and to save the woman's life" (34 percent) or "should not be permitted at all" (17 percent). In 2001, just 45 percent of women took anti-abortion positions.
Moreover, this year, only 41 percent of women said that "keeping abortion legal" should be a top priority for the women's movement, down from 49 percent in 2001. The top issues now? Domestic violence, equal pay for equal work, child care, health care and time off to care for family members, drug and alcohol addiction, and sexual harassment—all considered a top priority by more than 70 percent of women.
The message is clear: For most women today, quality-of-life issues prevail over women's rights. This shift is likely to put liberals at a distinct disadvantage in any fight over a Supreme Court nominee.