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Some conservative evangelicals may consider Miers's withdrawal as a victory, but confirmation gets no easier for the next nominee. Senate Minority Leader Harry Reid, D-Nev., said in a press release, "The radical right wing of the Republican Party killed the Harriet Miers nomination. Apparently, Ms. Miers did not satisfy those who want to pack the Supreme Court with rigid ideologues."

Cizik said Bush cannot afford to lose conservative support for his next nominee.

"The other lesson is that excellence matters," Cizik said. "In the wake of Hurricane Katrina, the perception that the President engaged in some cronyism here was unfortunate and out of character for this President, who is known to pick excellent nominees like John Roberts and the highly regarded Fed chairman" nominee, Ben Bernanke.

Full docket
Several emotionally charged cases currently before the Court—involving euthanasia, abortion, and religious freedom—illustrate the stakes for the next nominee.

In October, the Court heard arguments in Gonzales v. Oregon and considered whether the state of Oregon can allow the use of federally controlled drugs in physician-assisted suicides. Under Oregon's 1997 Death with Dignity Act, doctors may sometimes prescribe terminally ill patients lethal doses of medication. In 2001, then-U.S. Attorney General John Ashcroft challenged the law by arguing that physician-assisted suicide serves no "legitimate medical purpose," and that using federally controlled drugs to do so violates the federal Controlled Substances Act.

Another closely watched case is Ayotte v. Planned Parenthood of Northern New England, scheduled to be heard in late November. Planned Parenthood sued New Hampshire to stop the state from enforcing a parental notification law. The state's 2003 law requires abortion providers to notify a minor's parents 48 hours prior to performing an abortion. Planned Parenthood argues the law does not contain an adequate health exemption to allow minors to bypass the law. Two lower federal courts have ruled the state law unconstitutional.

"It's a case where the exception would completely swallow the requirement of parental notice," said Americans United for Life attorney Clarke Forsythe.

Court watchers also expect the high court to consider the federal 2003 Partial-Birth Abortion Ban Act, which has already been challenged in three separate federal circuits and appealed to the Supreme Court in one.

Justice Sandra Day O'Connor sided with the 5-4 majority in the high court's Stenberg v. Carhart ruling in 2000. That decision struck down Nebraska's partial-birth abortion ban for lack of a greater health exception.

Court watchers say that even if O'Connor's replacement turns out to be a strong conservative, the new Court will probably not overturn Roe v. Wade. Steven Aden of the Christian Legal Society said, "What I see instead is a retrenchment from the majority's willingness to expand the so-called right of reproductive freedom."

O'Connor is currently a "lame duck" justice. If she hears a case that is not decided before the Senate confirms her successor, she cannot vote. A theoretical 4-4 division would affirm lower courts' rulings, unless the cases are appealed and reheard.

Another case before the Court has made unlikely allies of the NAE and a Brazilian religious sect that wants to use a hallucinogenic drug. The Court will decide whether the Drug Enforcement Administration can prevent the drug's importation without violating the 1993 Religious Freedom Restoration Act that requires federal officials to accommodate religious exercise. The NAE and other major religious groups have filed "friend of the court" briefs and argued that the act must be read broadly to protect free religious exercise. The Court planned to hear arguments in early November and decide the case this spring.

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October (Web-only) 2005, Vol. 49