It may be unseemly and disrespectful less than forty-eight hours after his passing to begin speculation on a successor to Chief Justice William Rehnquist, but there are a number of issues which Senators and the public must consider in the weeks to come as the President chooses and the Senate confirms the new leader of the Supreme Court.
As Rehnquist was a conservative and his replacement will, most likely, reflect his conservative temperment, the Supreme Court is unlikely to change its balance due to his absence. However, as Associate Justice Sandra Day O’Conner was often a swing vote between the conservatives and the moderates and liberals, her replacement will matter a great deal. Judge John Roberts has been nominated to replace her and I believe that many liberal groups have rushed to judgment on him and prematurely announced opposition to his nomination. I don’t believe Roberts will be as dangerous to gay people and other minorities as some fear, primarily because of his strong respect for the concept of stare decisis, of legal precedent, (see this article on Stare Decisis in Wikipedia). Roberts strongly believes in upholding legal precedents and if the court has ruled, as it did in Lawrence v Texas that anti-sodomy laws are a violation of the right of privacy, he is unlikely to reverse that. He is unlikely to reverse Roe v Wade, either. Much as I dislike George W. Bush, and my dislike of the man is immense and intense, I believe the early opposition to the Roberts nomination is simply knee-jerk and opportunistic. It is my hope, actually, as some have suggested on the Sunday morning talk-shows, that Bush switches Roberts’ nomination to fill Rehnquist’s seat and chooses someone else for O’Connor’s.
All of this, however, must be viewed in the light of what I believe is the great issue facing America during the next few decades. Eloquently stated during an episode of The West Wing a few years ago, an aide to the character of President Bartlet states that the great issue facing America in the Twenty-first Century will be privacy. It is true. As surveillance of computers and communications becomes not only easier but more common, as legislation such as the “Patriot” Act becomes more acceptable, as the people of the United States become ever more compliant and less concerned about the growing encroachments on their civil liberties and place the illusion of security before the right of freedom, privacy will be the great issue before the Supreme Court during the upcoming decades. And, it is this issue on which Judge Roberts and any other Court nominees should be questioned in the most intense and direct of terms.
Privacy is a right and we should demand it.
