Introduction

Stiftung Wissenschaft und Politik German Institute for International and Security Affairs

A Litmus Test for Bush and the Republicans SWP Comments The Composition of the “New” U.S. Supreme Court Josef Braml

After Harriet Miers withdrew her candidacy for the U.S. Supreme Court, President Bush nominated Samuel Alito, who, unlike Miers, is supported by the conservative Republican “base.” While Bush was able to successfully maneuver his first Supreme Court nominee, John Roberts, through the Senate, as the successor to the deceased conservative Chief Justice Rehnquist, the succession of the outgoing Justice Sandra Day O’Connor has proven to be much more difficult because Samuel Alito, the current nominee, could fundamentally change the balance of power on the nine-member court, not least with respect to the politically-tricky issue. The 1973 decision of the Supreme Court establishing the right to an abortion is, for many conservatives, a classic example of “judicial activism.” This nomination, on the one hand, has mobilized the —the strongest group of voters among the Republicans—but on the other hand, it has also motivated the liberal pro-choice groups and the more moderate abortion opponents to get involved politically, as already can be seen in the run-up to Senate confirmation hearings in January 2006. The decisions that the President makes in this “ war” will not only determine the starting point of his party in future elections, but will also influence the domestic and security policies of the USA beyond his term of office.

The declining approval rating for the separation of church and state and the President is making an already sensitive right to an abortion, which not only task even more difficult: George W. Bush polarize the nation but also put to the test must ensure that the appointment of his the coherence and the future of the Repub- current nominee is not blocked by the lican voter coalition. Will the President opposition in the Senate and at the same succeed in the tightrope act of satisfying time make sure that his own party sticks the Christian Right without offending the together. A significant criterion for the voters that are more pragmatic when it nomination is the position of the nominee comes to religious and moral questions? on so-called “wedge issues,” such as the

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1 What are the possible political conse- organizer of George W. Bush’s successful quences of the “new” Supreme Court? “grassroots” election campaign, the alliance with the Republican party remains a dif- ficult balancing act: In the struggle for Diminishing Political Capital political power, which requires conces- of the President sions, this group runs the risk of abandon- At the beginning of 2005 the U.S. President, ing its moral principles, especially with strengthened by his re-election, announced respect to the abortion issue. These prin- that he had collected large quantities of ciples, which underlie the pledge for “political capital.” Moreover, he promised the political efforts, were important for to use it for the purposes of “his” voters. mobilizing the base. Decisions by the Close analysis of the election results make Supreme Court—above all the establish- clear that George W. Bush’s voters most ment of the right to an abortion in the frequently cited moral values/religious case of Roe v. Wade (1973)—were the initial convictions as the most important criterion impetus and the fuel for the political of their voting decision, followed by ter- involvement of the Christian Right, which rorism. The decisive issues for the election will not rest until the “unholy” decisions could, however, prove to be two-sided for abortion are reversed. On an everyday because they also hide political dangers for basis, however, it continues to be important Bush and the Republicans. for Evangelicals not to stir up fear in the The war in Iraq—which President Bush population as a whole—let alone mobilize portrayed to his followers as another battle their political opponents. The Christian in the long-term “War on Terror”—has Right must be careful not to endanger the increasingly become a political burden and cohesion of its own political coalition. undermines the President and his fellow For the Republican Party’s strategists, Republicans’ “capital” in Congress, among integrating the Christian Right without them Congressmen and some Senators who putting at risk the party’s cohesion remains have to run for re-election in less than a a special challenge. It is a matter of year. The politically explosive war in Iraq is bringing the broad spectrum of Repub- putting the already fragile coalition of the licans together: from the economic and Republicans to the test, particularly given value libertarians to the moral/social that so far the unity of the party in foreign conservatives. This can, however, succeed policy with respect to the war against terror only if one concentrates on political and was a good point around which to rally the economic topics which are common far more fragile domestic policy coalition of ground, and if one somewhat defuses the Republicans. divisive moral topics. The latter has so far In domestic policy, the President is in been put into practice successfully by danger of getting caught between the avoiding awkward topics like AIDS or fronts of the so-called “culture war” which abortion and shifting domestic attention is fueled by issues relating to relations to the foreign policy arena. Thus new fields between the state and religion, sexual of operation for the Christian Right were morals and, in particular, the right to an created without putting off moderate abortion. Losses for the Republicans in voters (for more details see SWP Research future elections could be the consequence. Paper 35/2004: Josef Braml, “The Religious Right in the United States: The Base of the Bush-Administration?”). Test of Endurance for the Within domestic discussions so-called Republicans’ Voter Coalition “moral issues,” sexual morality topics such For pragmatically oriented strategists of the as abortion or homosexuality are not well- Christian Right such as Ralph Reed, chief suited for Republicans to find a stable, com-

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2 mon position. If the election strategy moves cumbent President was able to enlarge his too far in the pro-life direction, moderate already strong Evangelical Christian base abortion opponents and pro-choice Repub- and broaden his Christian Right majority licans could be put off. In regard to homo- across different religious denominations. sexual or state-sponsored domes- Bush’s share of white Evangelical voters tic partnerships, homosexuals in particular (who make up a quarter of registered strongly endorse further liberalization. voters) increased from 71% in 2000 to 78% The fight of the “true believers” against for his re-election in 2004. Beyond that “modernity” and for “true values,” keeps Bush succeeded in increasing the share of economically and morally libertarian Catholic voters (another quarter of the Republicans at a distance. registered electorate), gaining even more votes from them than his Catholic chal- lenger John Kerry: 52% versus 47% for Abortion—a Decisive Question… Senator Kerry. Above all, concerning the abortion issue, President Bush oscillates between the moderate positions of more liberal party …for the Political Future of the members and the dogmatic attitude of the “Moral Majority” Christian Right. After he succeeded in The political strategists of the Republicans outlawing “partial-birth abortion,” he and the Christian Right are accordingly slowed down further expectations by motivated to one day increase the number pointing out that Americans are not yet of Catholic voters to match the number of ready for a general prohibition on abortion. conservative Evangelicals. If they succeed, The “Partial-Birth Abortion Ban” makes they will have achieved their strategic aim abortion during the later stages of a of a cross-denominational “moral major- pregnancy a punishable offence. The pro- ity.” Long before Bush’s re-election there visional legislative success was less risky for were numerous meetings between leading the President than restrictions on other conservative Evangelicals and Catholic abortion practices given that the majority leaders. Traditionally, Catholics have of the American population supports the tended to vote for the Democrats. This has latest restriction on the right to an abortion changed gradually since the election of established in 1973. At the same time, how- Reagan in 1980, who won a noticeable ever, it is against further restrictions and share of Catholic votes. “The Catholic vote against a general reversal of the leading continues to be a vote that is pretty much decision. up for grabs between the two parties,” During the election campaign the in- stated Gary Bauer, the leading Christian cumbent President did not take a clear Right thinker and former domestic adviser position on Roe v. Wade. In contrast, his to , in describing the long- challenger John Kerry, through his voting term outlook. record in the Senate and in the debate Catholics are not only interesting to with the incumbent President, made it the Republican election strategists because known that he supported the unrestricted of their current voting potential, but also retention of the right to an abortion. As a because their share of the population result, the liberal John Kerry was virtually showed the greatest increase—especially the ideal “evil” opponent against whom the “Hispanics” (63% of them are Catholic and Republican Party strategists and the grass- 16% Protestants, also including Evangeli- roots organizers of the Christian Right cals) whose number in the U.S. quadrupled could mobilize their base. in the last three decades (1970 9.6 million; George W. Bush’s “culture of life” elec- 2000 35.3 million) according to the data of tion campaign was successful: The in- the Pew Hispanic Center.

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3 On the occasion of the signing of the “We expect President Bush to appoint “Partial-Birth Abortion Ban” by President somebody that clearly is on our side in Bush, Archbishop Charles Chaput, Chair- this cultural battle, somebody like Scalia,” man of the U.S. Conference of Catholic Christian Right spokesman Bauer signaled Bishops’ Committee for Pro-Life Activities, as a clear warning for the President. Justice applauded this law as a turning point: Antonin Scalia, an ultra-conservative “President Bush’s signing of the Partial- Catholic, is convinced “that government Birth Abortion Ban Act marks the first time derives its moral authority from God.” in three decades that our nation has placed Hence, the Christian Right regards pre- any restriction on an abortion procedure.” venting Gonzales, who in their view is too For Archbishop Chaput it was a first “vital liberal, from joining the Supreme Court step in the right direction.” as a success. Encouraged by this partial legislative But Bush would also be well-advised not success, the victories of the Republicans to send candidates with too extreme of a in recent elections, and the fact that in religious-moral position into the nomina- addition to the White House, both houses tion process. In his term in office, the of Congress are in the Republican’s grip, President has had to repeatedly withdraw conservative religious interest groups and nominees for higher judicial positions in voters now have higher expectations of the the federal courts after they had been President and expect him to take their blocked in the Senate with the threat of concerns to heart, especially with respect to filibusters by liberals of the Democratic the—for them—central issues concerning opposition. Not until a bipartisan group of the nominations for the Supreme Court. 14 Senators, the so-called “Gang of 14,” They expect President Bush to take a clearer agreed on a provisional compromise, was stance than his father or his predecessor there a temporary truce in the “culture Reagan because important issues for the war.” As a result of the truce the Senate Christian Right—such as abortion, homo- approved three of the ten controversial sexual marriage, the sexual privacy of nominations and the Democrats agreed not homosexuals or whether the patriotic to filibuster them. In turn, seven Republi- ritual of the “Pledge of Allegiance” in can Senators committed themselves to schools may include the phrase “one nation refuse to follow their majority leader in the under God”—will not or cannot be resolved event he resorted to the “nuclear option”: by Congress or the President, but by the Majority Leader Bill Frist threatened to Supreme Court as the final authority on the change the procedural rules with a simple interpretation of the constitution. majority of 51 votes and thereby de facto get rid of Congressional scrutiny of judicial nominations. Under “extraordinary circum- The Nominations stances” the truce can, however, be called In order to divide the opponents and off. The circumstances under which this possibly also the electorate of the Democ- would occur are open to interpretation rats, President Bush considered proposing (for more details on the filibuster debate a Hispanic candidate for the Supreme Court see SWP Comment 24/2005: Michael Kolk- position: Alberto Gonzales, his former per- mann, “A Test for Bush’s Republican sonal adviser and current Attorney General. Majority: The ‘Filibuster’-Debate in the U.S. But the President refrained from doing this Senate”). Regarding nominations for the in the end, because such a nomination Supreme Court it is at least doubtful that would have also caused severe tensions the truce will last, particularly given that within his own party. For many supporters the nominations for the Supreme Court are of the Christian Right, a Supreme Court far more significant in several respects than Justice cannot be conservative enough: the other nominations thus far. It is still

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4 feared that the abortion issue would once when one of her former opinions was again be decisive and could prove divisive. made public: In addition to her pro-life The President’s moral conflicts of inter- pronouncements, statements came to light, est cannot be solved but rather managed in which she had pleaded for a woman’s and hidden from view. Not least because of right to “self-determination” as well. this reason George W. Bush nominated “Though she attends an Evangelical church candidates for the Supreme Court whose known for its pro-life position, during the public opinions did not allow their clear same time period Harriet Miers advanced classification into to one camp or the other radical feminists and organizations that in the abortion dispute. Thus Bush’s op- promote agendas that undermine respect ponents do not have at their disposal for life and family,” protested Wendy effective arguments that could jeopardize Wright, Executive Vice President of the the nominations. organization Concerned Women for The first nomination (of John Roberts) America (CWA), in a public statement went rather smoothly. In John Roberts, against the nomination of Miers. Even President Bush proposed a candidate to the James Dobson, who is very influential Senate whose education and background within the circles of the Christian Right, made it difficult for the Democrats to and who had initially pleaded for trusting disqualify him for religious fervor. Roberts the President, withdrew his support “based certainly is a religious Catholic who also on what we now know about Miss Miers.” enjoys the full support of the Christian A multitude of additional Christian Right Right. He did however, not get into interest groups—such as the Eagle Forum, religious questions during the hearings the Family Research Council (FRC) and the in front of the Senate nor did he take a Catholic group Fidelis—organized grass- clear-cut position with respect to the roots campaigns to put the Senators under abortion controversy. massive pressure. Majority Leader Frist After this success for the Republicans it eventually notified the White House that will be more difficult to maneuver another Harriet Miers would not find a majority candidate through the Senate. While in the within his own party in the upcoming case of Roberts a steady conservative justice nomination hearings. The Christian Right (Chief Justice William Rehnquist) was Senator who coordinates replaced by a similar conservative, there is the Value Action Team (VAT)—a group of more at stake with the succession of Justice morally conservative Congressmen and Sandra Day O’Connor, considered a liberal. Senators—informed the President that he In the course of her judicial activity the hoped that the next nominee would have a first woman on the Supreme Court, who more distinct conservative philosophy, was nominated by President Reagan, turned above all concerning the abortion issue. out to be “too liberal” in the view of con- After Harriet Miers’ withdrawal, Presi- servatives. In many of the decisions im- dent Bush nominated Samuel Alito, a portant to the Christian Right she tipped “principled” candidate who represents the the scales against them. With her succes- ideals of his party’s base. Christian Right sion, the balance of power of the nine- organizations like the CWA “wholeheart- member court could change significantly. edly” support the nomination of the This is all the more reason for the Christian Catholic; they see in Alito an “originalist” Right to turn its attention to her successor’s who will orient himself around the initial “moral reliability.” “true” intentions of the constitution The Christian Right therefore greeted instead of developing its principles in Bush’s nomination of Harriet Miers with accordance with the spirit of the age’s— more hesitation than they did John the Zeitgeist’s—“activism.” Unlike Miers, Roberts’. The nomination was put at risk Alito has extensive work experience as a

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5 judge and he is extremely familiar with Braml, “USA: Zwischen Rechtsschutz und constitutional issues. Staatsschutz”). Thus far, the Supreme Court Alito’s background will make it difficult has been rather reluctant to get involved, for political opponents to stigmatize him because it did not want to tie the hands of as an extremist and therefore prevent his the Commander-in-Chief. candidacy by blocking his nomination in Chief Justice John Roberts is unlikely the Senate. The Senate already accepted to place tight limits on measures that him unanimously without any reservations the President can take when it comes to in 1990 when he was nominated to be a domestic and foreign security. In any event, judge on the Federal Court of Appeals. as a judge on the Court of Appeals, he Alito’s numerous opinions from his time on helped to modify the judgment of a district that court certainly could be used against court that invalidated the military tribu- him. If necessary, he could however refer nals (“military commissions”) authorized to the fact that his opinions so far had been by an Executive Order of the President and restricted by the jurisprudence of the established for trying some Guantanamo Supreme Court. Bay prisoners. However, there are no indi- cations so far as to which approach Alito would take on the question of presidential Possible Consequences of the power. Nominations The “new” Supreme Court, which will include two George W. Bush appointees De-regulation of the Economy (and perhaps more in the future), should The new Chief Justice, John Roberts, also extend the President’s primary political acted as an advocate for free trade and aims beyond his term of office: projects industry; thus, thorough familiarity such as the “war on terror,” the reduction with the concerns of the business world is of national regulation of the economy expected. The trade lobby therefore greeted and the establishment of a new “culture of Roberts’ “real life” experience. The U.S. life” in America are decisions of central Chamber of Commerce welcomed the meaning to the Supreme Court. At the same nomination of Samuel Alito just as warmly. time, opinions of the Supreme Court about Its president, Thomas Donohue, praised so-called “moral issues” have repercussions Alito’s high qualifications and “urged” the on the future political behavior of the Senate “to expedite their confirmation Christian Right: the most important voters process.” Donohue explained the Cham- for the Republicans. ber’s support, pointing out the “enormous impact” the Supreme Court has “on the way America does business.” Room to Maneuver in the War on Terror Neither Roberts nor Alito showed con- The legal status and the treatment of cerns about being associated with the “enemy combatants” and the status of the “Federalist Society,” an association of con- Taliban and Al-Qaeda fighters incarcerated servatives, above all economic libertarian on the Marine Base at Guantanamo Bay in lawyers, whose aim among other things is Cuba also implicate the authority of the to de-regulate American economic activity judicial branch (for more details see, Josef (among other things environmental Braml, “Rule of Law or Dictates by Fear: A restrictions) and to keep the state from German Perspective on American Civil interfering with the economy. Liberties in the War Against Terrorism,” in: Fletcher Forum of World Affairs, Volume 27, Issue 2, Summer–Fall 2003, pp. 115– 140; SWP Research Paper 5/2003: Josef

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6 Abortion and the “Culture of Life” recent election successes for Bush and the It is difficult to determine in which form Republicans in Congress—stay loyal to the abortion issue will reach the Supreme the party or withdraw their trust again. If Court in the future and how it will ulti- they were to become disillusioned with mately be decided. Alito’s relevant decisions politics with respect to what are for them as a judge on the Court of Appeals in Phila- important questions about life, many Evan- delphia are not easily reduced to a common gelical Protestants would return to political denominator. In 1991, in his most promi- abstinence and thereby—given the tenuous nent decision in the case of Planned Parent- balance of political power—prevent the long hood v. Casey, he wrote a dissenting opinion sought majorities of the Republicans. on behalf of the right of a husband to be informed about his wife’s intention to have an abortion. A year later his minority Conclusion position was rejected by a majority of the In the opinion of the majority of observers

Supreme Court’s justices (among others in this country, as well as many commenta- © Stiftung Wissenschaft und Sandra Day O’Connor), repeatedly referring tors in the U.S., the President made major Politik, 2005 to the right to an abortion established errors in the nomination process. If one All rights reserved in 1973. John Roberts’ position on the considers the fundamental political dilem- SWP abortion issue is also not clear-cut. mas that Bush and his party have to cope Stiftung Wissenschaft und Politik For Karl Rove, the leading thinker be- with, one must admit that Bush handled German Institute for hind the long-term Republican majority the situation rather skillfully. After the first International and Security Affairs based on the Christian Right, there is no successful nomination, Bush might now see doubt that the judges nominated by Bush through a second one that is expected to be Ludwigkirchplatz 3−4 10719 Berlin will make the “right” decisions in their much more difficult. Thus Bush would, at Telephone +49 30 880 07-0 future roles, also with respect to the least with respect to important domestic Fax +49 30 880 07-100 abortion issue. political issues, leave his party a good www.swp-berlin.org [email protected] starting point that would make it possible for the party to prepare the moral grounds ISSN 1861-1761 A Look at Future Elections for future elections as well. And given that In the short term, with an eye to the Supreme Court justices have their positions midterm elections in 2006, Bush and for life, George W. Bush can also leave his the Republicans must be sure that the mark on other political fields such as trade Christian Right is more or less satisfied and security policy and influence America with both nominations. However, they well beyond the end of his presidency. cannot propose any obviously ultra- conservative candidates. Otherwise, a political “culture war” would erupt, which could put off the moderate voters and help the political opposition to mobilize its own base. It is not out of the question to think that, during Bush’s presidency, additional, perhaps even liberal, justices would step down from the Supreme Court for age or health reasons. This would pose even greater challenges for the President. In the long term, however, the future decisions of the newly reconstituted Supreme Court, especially in abortion- related matters, will co-determine whether Evangelical Christians—the base of the

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