Justice William H. Rehnquist to retire after this session – and that’s still a possibility – but he was expected to be replaced by another conservative, meaning the 9-member court would remain evenly divided, with four liberals, four conservatives and O’Conner darting back and forth between each camp.

However, the resignation of the court’s swing voter means that George W. Bush’s first court appointee could instantly shift the balance of power, creating a conservative majority.

This appointment will force Bush, who has tried to have it both ways on some issues, to choose between his rhetoric of compromise and cooperation and his pledge to appoint Supreme Court justices in the mold of Antonin Scalia and Clarence Thomas, the court’s most conservative members.

To understand O’Connor’s impact, all one has to do is examine some of the 5-4 Supreme Court decisions. She cast the deciding vote in:
- Grutter V. Bollinger, affirming the right of universities to use affirmative action in admissions;
- Brown v. Legal Foundation of Washington, maintaining legal funding for the poor;
- Rush Prudential HMO v. Moran, allowing people enrolled in HMOs to seek a second medical opinion;
- Hunt v. Cromartie, upholding the right of states to consider race as a factor in redistricting and
- Brentwood Academy v. Tennessee Secondary Athletic Association, affirming a lower-court decision that civil rights laws apply to associations regulating intercollegiate sports.

Even before O’Connor announced her decision, the battle lines were drawn and multi-million dollar campaigns had already been launched. Progressives were campaigning to persuade the public –and President Bush – that only mainstream jurists should be appointed to the lifetime appointments on the court. Conservatives were eager to avoid a defeat similar to 1987 attack that blocked the elevation of Judge of Robert Bork to the Supreme Court and the narrow (52 votes) and bitter confirmation of Clarence Thomas in 1991, formed Alliance Defense Fund, a consortium of conservative Christian organizations.

Even more important, they set in motion a campaign aimed at making sure the next Supreme Court selection will consistently side with conservatives. Upset that Justice David H. Souter, a Reagan appointee, consistently votes with the more liberal wing of the court, conservatives have developed a rallying cry: “No more Souters.”

Bush’s conservative base is pushing for a strong conservative who will not disappoint them.
A research paper by People for the American Way observes: “…Right-wing activists have turned their harshest fire not on the Court’s more moderate justices but on two conservative justices who frequently forge majorities on the most important cases before the Court – Justices O’Connor and Kenney. A number of far-right leaders have harshly criticized these two Justices, going so far as to call for their impeachment.

“In an April newsletter, Focus on the Family’s James Dobson called Supreme Court Justice Anthony Kennedy “the most dangerous man in America,” and demanded that he be impeached “along with [Justices] O’Connor, Ginsberg [sic], Souter, Breyer, and Stevens.”

Despite such radical views, White House officials have acknowledged that they are sharing the names of several potential nominees past Dobson and other conservative group for their review.

Some Senators are urging Bush to select a nominee who will enjoy broad bi-partisan support. They note that Sandra Day O’Connor was approved 99-0 in 1981, Anthony Kennedy, 97-0 in 1988, David Souter 90-9 in 1990, Ruth Bader Ginsburg, 96-3 in 1993 and Steven G. Breyer 87-9 in 1994, the last time there was a vacancy.

So far, Bush does not seem to be striking a conciliatory tone.

“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.”

Whether the nominee gets that kind of reception, will depend on whether Bush is able to break the hold the Far Right has on his administration and nominate a mainstream candidate acceptable to both Democrats and Republicans.

George E. Curry is editor-in-chief of the NNPA News Service and BlackPressUSA.com. He appears on National Public Radio (NPR) three times a week as part of “News and Notes with Ed Gordon.” In addition, his radio commentary is syndicated each week by Capitol Radio News Service (301/588-1993). To contact Curry or to book him for a speaking engagement, go to his Web site, www.georgecurry.com.