Jews Lament Brennan Resignation, Seek Information on Bush Nominee
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Jews Lament Brennan Resignation, Seek Information on Bush Nominee

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Jewish organizations are scurrying to find out all they can about U.S. Appeals Court Judge David Souter, whom President Bush nominated late Monday afternoon to replace Justice William Brennan on the U.S. Supreme Court.

Even before Bush had announced his choice, Brennan’s sudden resignation from the high court last Friday evening had touched off a sense of foreboding within the American Jewish community that the constitutional wall of separation between church and state would be eroded by the court that takes shape after his replacement is confirmed.

Several Jewish organizations, especially the women’s groups, are also concerned that the new court may overturn Roe vs. Wade, the 1973 landmark case that said women have a constitutional right to have an abortion.

And there is concern that nearly half a century of gains in civil liberties and civil rights, including such controversial remedies as affirmative action measures, could be weakened.

The 84-year-old Brennan, who resigned after a mild stroke, has been in the forefront of all these issues during his 34 years on the court and is credited with keeping the increasingly conservative court from going further to the right than it has.

The 50-year-old Souter, who was confirmed unanimously by the Senate earlier this year for a seat on the 1st U.S. Circuit Court of Appeals in Boston, is largely an unknown quantity, at least to Jewish groups that follow the Supreme Court closely.

Souter is believed to have been recommended by White House Chief of Staff John Sununu, who as governor of New Hampshire had named him to the New Hampshire Supreme Court. Souter had earlier served as the state’s attorney general.


“If all we know is that Sununu thinks he’s terrific, we have something to worry about,” Harvard Law School Professor Alan Dershowitz said in a telephone interview Monday evening.

Bush, urging the Senate to confirm the nomination before the Supreme Court’s new term starts in October, denied having quizzed Souter on any of his views, including abortion or affirmative action.

Speaking at a 5 p.m. White House news conference, the president said his only criteria was that the new justice “interpret the Constitution and not legislate from the federal bench.”

That is what conservatives have accused Brennan and other liberals of doing since the 1950s.

Nevertheless, Bush praised Brennan for his “powerful intellect, winning personality and commitment to civil discourse on emotional issues.”

Brennan’s resignation was greeted with “deep regret and enormous gratitude for what he has done in the past” by the American Jewish Committee.

Samuel Rabinove, AJCommittee’s legal director, said Brennan has been a “good friend of the Jewish community and a stalwart champion of religious freedom and separation of church and state.”

Brennan’s “departure from the bench is a great loss to the Jewish community,” Rabinove said.

The American Jewish Congress, too, was “very saddened” by Brennan’s departure. He was a “devoted friend” of civil liberties and the separation of church and state, said Mark Stern, the group’s legal director.

But while Jewish groups are clearly worried about the consequences of Brennan’s departure, few of them were willing to make a forecast without knowing more about Bush’s proposed replacement.

“I don’t want to predict gloom and doom,” Stern said. But he noted that the court has been closely divided with many 5-4 and 6-3 decisions that could go the other way if Brennan’s replacement turns out to be more conservative.

“Whoever replaces Justice Brennan is not going to have same view,” Stern said.


But Rabinove and others pointed out that a conservative justice would not necessarily vote to weaken the constitutional separation of church and state.

He pointed to Justice Sandra Day O’Connor, who has frequently sided with what could be called the Jewish point of view in this issue. She was in the minority that supported the right of an Orthodox Jew in the Air Force to wear a yarmulke, Rabinove said.

The AJCommittee official observed, too, that there is always a great deal of unpredictability in appointments.

Brennan was appointed by Dwight Eisenhower, who hoped for a conservative justice and wound up with a liberal. Justice Harry Blackmun, who frequently has sided with Brennan, was named by Richard Nixon. And Byron White, who has often sided with the conservatives, was named by John Kennedy.

William Rapfogel, executive director of the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America, does not believe that religious freedom will suffer under a conservative.

But Rapfogel said he fears the nomination may turn into another “litmus test” search, resembling the “ugliness” of the Senate hearings that ultimately rejected Ronald Reagan’s nomination of Robert Bork to the Supreme Court.

This means that the attention will focus on issues rather than qualifications, Rapfogel said.

If there is a litmus test, it is expected to center on the future of Roe vs. Wade, with both the pro-choice and anti-abortion groups already gearing up for a battle.

Joan Bronk, president of the National Council of Jewish Women, and Aileen Cooper, director of public affairs for B’nai B’rith Women, expressed concern about the future of choice for women on abortion.

Their organizations are likely to be in the forefront of opposing the new justice if he turns out to oppose a woman’s right to have an abortion.

Souter refused Monday to comment on any of his opinions before his Senate hearing.


But Theodore Mann, former president of the American Jewish Congress, said that as concerned as he is about how abortion rights, civil liberties and civil rights will be affected by whoever is ultimately confirmed, “my primary and dominant concern is the religious liberties clause.”

Mann, a Philadelphia lawyer who has argued religious liberties cases before the Supreme Court, began expressing his concerns about the changing court more than a year ago.

In an Aug. 4, 1989, letter to selected Jewish leaders, including some Jewish Republicans and members of Congress, Mann warned that the Supreme Court decision declaring unconstitutional a creche in the Allegheny, Pa., courthouse was decided on a razor-thin 5-4 vote.

He pointed out that the dissent written by Justice Anthony Kennedy argued that the government may endorse religion as long as there is no coercion, direct financial aid or government proselytization.

“If the next Supreme Court appointee shares Justice Kennedy’s views, we will have taken a long step backward on the struggle for the full freedom that Jews have gained in America — only in America,” Mann wrote.

Mann and the others pointed to a serious erosion of the First Amendment clause barring government establishment of religion in what has come to be called the peyote case.

In an April 17 decision, the court ruled that Oregon could pass a general law forbidding the use of peyote, even though doing so would infringe on the ritual practices of American Indians, who use the hallucinogenic drug in their religious worship.

Mann said that while Jews may feel they have more “clout” than the Indians, this could change.

There is always the possibility, he said, that religious or anti-religious fervor could “be let loose here in our own society, such that some rein on majoritarian rule will be utterly essential for our (Jewish) well-being.”

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