By: Marc H. Morial President and CEO National Urban League
Justice Sandra Day O'Connor's retirement from the U.S. Supreme Court gives President Bush the opportunity to make the first new appointment of a Supreme Court justice in eleven years.
We should all care, for the President's choice will affect the lives of every single American, no matter their race, class, age, education, or economic status. African Americans have special reasons to scrutinize the nominee, whom the President said he will name shortly, with the greatest of concern.
Some might think that it makes no difference to them who ends up on the courts because they themselves have never had to appear before a judge.
They couldn't be more wrong.
Federal judges have enormous influence over all of us because the decisions they make often go far beyond just the case in front of them.
Their decisions set precedents that are followed by other courts, law enforcement, state legislatures and city and town councils, businesses, schools, and other institutions that touch upon every facet of our lives.
These judges are appointed by the President, confirmed by the Senate and serve for life—the only federal appointees who can't be fired or voted out of office (except through impeachment) and whose terms don't end after a set number of years or when the president leaves office.
The nine Justices of the United States Supreme Court have the most power because their opinions cannot be appealed: they represent the last word on the issues they decide. Once "the Supremes" speak, that's it—unless the Supreme Court later overturns itself, as it did in the landmark 1954 Brown school segregation decision that struck down the Court's 1896 endorsement of racial segregation.
The Supreme Court does most of its work behind the scenes and out of the limelight, speaking mostly through their written opinions. But these written opinions, even if we never read them, affect every aspect of American society.
They determine whether affirmative action stays or goes. They decide if our right to vote is a mere concept or is effectively enforced. It's up to them whether workers discriminated against because of race or gender or age or disability can seek redress in court or can be turned away. And on and on.
Because Sandra Day O'Connor was the so-called "swing vote" on issues that reached the Court, she was one of its most important figures. While clearly a
conservative, Justice O'Connor didn't always vote in lockstep with the Court's right wing, and she sometimes cast the vote that "swung" the decision the other way.
For example, it was Justice O'Connor who saved the day for affirmative action two years ago, tipping the scale in favor of upholding the constitutionality of the University of Michigan Law School's affirmative action program. Had Justice O'Connor sided with Justices Thomas, Scalia, Rehnquist and Kennedy, the policy and practice of affirmative action would likely be gone today.
We did not always agree with Justice O'Connor, however. In our view, she sometimes cast the wrong vote, siding with the Court's extreme right wing to invalidate or restrict important civil rights measures. And it was her vote that decided the outcome of the 2000 Presidential Election, in which the Supreme Court stepped in and stopped the counting of ballots in Florida, thereby disenfranchising millions of African American voters.
Thus, Justice O'Connor's record on the Court shows that one justice does make a tremendous difference and shows why the selection of the next justice is so important.
President Bush has said that he wants to appoint justices in the mold of Justices Thomas and Scalia. But the last thing this country needs is more extremist right wing justices. We need justices who will respect and uphold civil rights protections, not tear them down. There are numerous distinguished men and women of all races and backgrounds who would make excellent justices and we call upon the President to choose Justice O'Connor's replacement from among that group.
This is a defining moment for the President and the U.S. Senate, one that in significant ways will determine not only the law but the political tone of American society for years to come.
The National Urban League will carefully examine the record of any nominee the President puts forward. That nominee must be open-minded and fair—and he or she must have a strong, positive and demonstrated commitment to upholding the protection of civil rights in American society. In that regard, political ideology cannot be a license for going backward.
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