George Bush has announced that John Roberts is his nomination for Supreme Court Justice, to replace Sandra Day O\x92Connor, who recently announced her retirement.

There has been huge concern among feminists over this nomination (we’ve written about it here and here) \x96 as Dubya himself pointed out, nominating a judge is \x93one of the most consequential decisions a president takes\x94, as the Supreme Court are the ultimate arbiters of what is legal according to the US Constitution. The American legal system (as far as my sketchy legal knowledge allows me to understand) is based on case law, which means that what is legal in America is basically all about what other judges have decided about its constitutionality (is that a word?) in the past. This is different to the UK where Parliament passes legislation to determine what is and is not legal.

Hence, to take the most obvious example, the right to abortion in the USA was deemed constitutional, and therefore legal, by the Supreme Court in the infamous 1973 Roe vs Wade case.

An appointment to the Supreme Court lasts for life, and Supreme Court justices tend to out-stay individual presidents by some margin (the current membership has been unchanged in 11 years). Depending on retirements and deaths, a president may get to nominate several justices or none at all \x96 it\x92s all about luck of the draw. This is George W. Bush\x92s first nomination \x96 Clinton and Bush Snr both got to nominate two, Regan nominated four (including a Chief Justice), whilst poor old Jimmy Carter didn\x92t get to pick any.

It\x92s well documented that the right to abortion is increasingly under threat in the USA. In 1992, Sandra Day O\x92Connor voted to uphold the right to abortion, a vote which passed the Supreme Court with a margin of two. An anti-abortion replacement for O\x92Connor could, then, be extremely bad news for American women. Several other members of the Supreme Court are old and in ill health, notably Chief Justice William Rehnquist and, if there are other replacements in coming months or years, the face of American law may start to look very different indeed.

But back to John Roberts. Of course, nominating doesn\x92t necessarily mean he\x92s in \x96 Senate have to approve the nomination, and political wrangling will abound. But, if he were to be approved, what of this John Roberts?

Apparently he hasn\x92t left enough of a paper trail to know much about what he thinks. Many were expecting Bush to bow to pressure to appoint a woman, or an ethnic minority which he has not done. Mr Roberts is described as \x93a conservative but not an outspoken ideologue\x94. On what the Guardian refers to as \x93the vexed question of abortion\x94 his position is unclear. He has argued an anti-abortion stance in the past but, so he says, merely on the instructions of a client. When quizzed on his opinion, he refers to Roe vs Wade as \x93the settled law of the land\x94 and said \x93there\x92s nothing in my personal views that would prevent me from fully and faithfully applying that precedent\x94.

We\x92ll be watching this space.

Posted by Lynne Miles on 20 July 2005, at 11:54 AM