washington | The retirement of Supreme Court Justice Sandra Day O’Connor is expected to add intensity to the Jewish community’s plans to weigh in on the high court’s future.
Many Jewish groups already had been mobilizing for an anticipated vacancy on the court, but had expected to be discussing a successor to Chief Justice William Rehnquist and watching President Bush replace a conservative vote with another conservative.
Orthodox groups take a different view, but many Jewish groups concerned about protecting abortion rights and the separation of church and state plan to fight to make sure the balance of the court doesn’t change.
“This ratchets up the stakes tremendously,” said Mark Pelavin, associate director of the Religious Action Center for Reform Judaism. “Instead of replacing a conservative justice with a conservative nominee, we face the prospect of replacing the swing vote on so many of our issues.”
Part of what is at stake is the unique role O’Connor has played on issues key to Jewish interests. The modern-day legal guidelines on how religion fits into the American public square have largely come from O’Connor’s decisions.
The U.S. Supreme Court has been fiercely divided for a quarter-century, with four justices opposing religious images in the public square and all federal money to religious organizations, and with four allowing for both.
O’Connor’s view — allowing for religious funding but crafting strict rules for religious symbols — has tipped the balance in many of the church-state cases since she joined the court in 1981. It has been her analysis that has led to federal funding for school vouchers, but has limited public displays of religious symbols.
Alan Dershowitz, a Harvard Law School professor, said O’Connor “singlehandedly kept the wall of separation between church and state standing.”
Jewish organizations plan to affect the nominee selection process in two stages. The first stage involves emphasizing guidelines they hope the Bush White House will follow in picking the next justice.
“He has the opportunity now to unite us together,” Phyllis Snyder, president of the National Council of Jewish Women, said of Bush. “If he’ll work with the bipartisan group of senators, he has the opportunity to pull people together.”
Many Jewish groups are urging Bush to step back and deliberate before nominating a replacement, hoping he will seek someone who has respect among diverse groups.
“There really are a lot of people on the short list who have a good shot at fitting into our criteria,” said Mark Waldman, director of public policy for the United Synagogue of Conservative Judaism, the movement’s congregational arm.
A second, more controversial phase includes joining like-minded religious organizations and liberal groups in a planned offensive if Bush picks a conservative jurist they consider “extremist.”
As a first step, many Jewish groups are joining other faith organizations in a letter to senators, stressing the importance of the “advise and consent” process for judicial nominees, which gives members of the minority party and others an opportunity to weigh in on nominations.
Crafted by the RAC, the letter was sent last week, signed by 29 organizations, including many Jewish ones. Jewish leaders caution that their actions depend on whom President Bush chooses and on that person’s credentials.
Using Bush’s selections to lower federal courts as a guide, however, they assume they’ll eventually need to mount a campaign against his nominee.
Jewish leaders say it’s unclear whether their community can add to the debate or merely repeat arguments made by others. Some say they would prefer not to expend resources if they don’t have much to add.
The campaign takes on extra impetus, however, as the Christian Coalition, whose views are antithetical to those of many Jewish groups, launches its own campaign on judicial appointments.
Bush said he would consult with advisers and senators, and hoped to have a nominee confirmed by the start of the new Supreme Court session in October. Sen. Arlen Specter (R-Pa.), who is Jewish, heads the Senate’s Judiciary Committee, which will review the nomination.
“The nation deserves, and I will select, a Supreme Court justice that Americans can be proud of,” Bush said. “The nation also deserves a dignified process of confirmation in the United States Senate characterized by fair treatment, a fair hearing and a fair vote.”
Sources said much of the pressure for increased involvement is focused on two high-profile Jewish groups that largely stay out of nomination battles: the American Jewish Committee and Anti-Defamation League.
The AJCommittee signed the letter to senators, but Richard Foltin, the group’s director of legislative affairs, said his organization rarely endorses or rejects specific nominees, viewing confirmation battles as partisan and personal.
“We’re always getting helpful advice from our friends,” Foltin said sarcastically. “We expect to be getting a lot more helpful advice.”
The ADL has not signed on to the letter. Michael Lieberman, the ADL’s Washington counsel, said the organization would continue its practice of analyzing Supreme Court nominees and sending letters to Senate Judiciary Committee members, suggesting areas on which to question the jurists.
But the ADL has taken positions against some federal court nominees, such as William Pryor, who first was nominated to the 11th Circuit Court of Appeals in 2003 but approved only this month.
“The idea that the president could pick someone we oppose is obvious,” Lieberman said. “It’s axiomatic that the stakes are higher because it’s the Supreme Court.”
Orthodox groups largely will stay out of the battle. The Orthodox Union will weigh in on issues relevant to the debate but won’t approve or reject nominees, said Nathan Diament, director of the OU’s Institute for Public Affairs.
The Conservative movement has surprised many by speaking out. It sent letters to the president and senators earlier this month, comparing justices to rabbis and other spiritual leaders.
The movement suggested that nominees should be well-trained, “eschew an ideologically defined approach to judicial interpretation” and show a “balanced respect for foundational documents, reasonable interpretation and societal realities.”