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Jews Ponder Future of High Court As Second Vacancy Raises Stakes

September 7, 2005
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The nation’s eyes were supposed to turn this week to the confirmation hearings of Judge John Roberts for the U.S. Supreme Court. But changing circumstances have raised the stakes and narrowed the timetable for influencing the future of the high court. Roberts’ hearings were to have commenced Tuesday, but were postponed after the death of Chief Justice William Rehnquist on Saturday evening.

And even when Roberts does face the Senate Judiciary Committee as a nominee for chief justice next week — President Bush nominated him Monday to replace Rehnquist as the court’s leader — America’s attention will likely still be focused on the Gulf Coast region, and the aftermath of Hurricane Katrina.

The storyline changes over the Labor Day weekend have left some Jewish groups pondering, with the rest of the nation, how they can be most effective in steering the future direction of the court.

The new vacancy, as well as Roberts’ possible ascension to chief justice, “dramatizes the seriousness of what the debate of the future of the court is really about,” said Rabbi David Saperstein, director of the Religious Action Center for Reform Judaism.

This is particularly true for those who view Roberts’ policy positions as too conservative for the court. The chief justice holds limited power over the other eight justices, but does control who authors opinions when he is in the majority. That could affect how opinions are written, and the jurisprudence made by them. In addition, the chief justice wields considerable influence over the entire federal court system.

The future of the court, analysts said, will largely depend now not on Roberts, but on who Bush names to replace Justice Sandra Day O’Connor, who will remain on the court until a replacement is confirmed. While Rehnquist was a reliable conservative who is now being replaced by a conservative, O’Connor is viewed as the moderate core of the court.

Replacing her with another conservative would shift the court squarely to the right on issues such as the separation of church and state and abortion rights; replacing her with a moderate would keep the court close to where it has been in recent years.

“It opens the door up for President Bush to look at this next vacancy and put in a more moderate candidate,” said Phyllis Snyder, president of the National Council of Jewish Women, which opposes Roberts.

Liberal Jewish leaders are quietly expressing hope that Attorney General Alberto Gonzales will be named to replace O’Connor. Gonzales has been criticized in some Jewish camps for his work as White House counsel on the encampment of prisoners at Guantanamo Bay, Cuba, but he is seen as more moderate than other jurists Bush considered for the high court earlier this summer.

Conservatives have raised strong concerns over Gonzales, but have been quieted by Bush, a close friend.

“He has said some of the right things, so I think people are more hopeful than they have any real reason to be,” one Jewish leader said of Gonzales. “But it’s all speculation and it’s all impossible to know for sure.”

Jewish groups did not appear to be planning new advocacy campaigns. Many Jewish groups — including the American Jewish Committee and the Anti-Defamation League — choose not to endorse or oppose presidential nominations, and have sent letters to lawmakers, stressing questions they would like asked about Roberts’ record.

The AJCommittee’s letter, released Tuesday, urged lawmakers to probe Roberts on numerous issues regarding the separation of church and state, including government funding of religious activity and school prayer.

The Reform movement was scheduled to vote on Sept. 13 on whether to oppose Roberts. They have criticized his record at length, but wanted to wait until after his hearings before taking a position. Their meeting in New York, however, now comes the day Roberts’ hearings begin. The decision has not been made whether the vote will be postponed.

“We really thought the proper thing to do was to wait and see what comes out of the hearings before making a decision,” Saperstein said. “This is a person who is quite qualified, but raises many questions on fundamental rights.”

On the other side, some concerns have been raised about lawmakers disapproving of Roberts because of his strong Christian beliefs. The Becket Fund for Religious Liberty suggested Monday in a full-page ad in The New York Times that a religious test for nominees would bring the United States back to the 19th century, when Catholics were thought to be loyal to the pope, and Jews were seen as untrustworthy.

Roberts’ supporters said they wanted more Jewish groups to speak out against this type of response to the nominee. Thus far, only the Orthodox Union has sent a letter of concern over religious tests.

“I’m very concerned,” said a Republican Senate aide, who asked not to be identified. “If you don’t do it to protect the other guys, it’s going to happen to you.”

Meanwhile, much of the nation’s attention has shifted to Hurricane Katrina and its aftermath. The news media is more focused on the destruction along the Gulf Coast, and it is unclear whether the press will cover Roberts’ confirmation hearings as intently as one might have expected.

Jewish groups have also been focusing so much attention on the hurricane’s aftermath in recent days, limiting resources available for monitoring the court. Mark Waldman, director of public policy for the United Synagogue of Conservative Judaism, said he had been working on providing aid and other support “non-stop” in recent days, and had not focused on the court developments.

Saperstein, who said he spent two hours on a Hurricane Katrina conference call Tuesday morning, said he believed his movement’s membership can focus on both issues.

“When issues of fundamental values and rights are at stake, our congregations really have the energy to convey their strong feelings and engage on these issues,” he said.

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