Bush's Court Picks: Be Afraid. Very Afraid.
Democrats haven't made much of what would happen to the courts should Bush win a second term. This is curious, because you'll remember that the Gore campaign was virtually tattooed with the slogan "Two words: Supreme Court." Maybe the undecideds of Ohio don't know the President nominates judges, and nobody wants to tell them. After all, when you have a system in which the voters who matter most are the ones who know the least, care the least and pay the least attention, you're taking a risk if you give them too much information at once. They might explode! The conventional wisdom is that only college-educated liberals care about the courts, and they're already on board, but I wonder how true that is. What about those soccer moms, torn between tax cuts and abortion rights, or Arizona's Republican women, who are beginning to revolt against their party's hard-right turn, as Salon's Sidney Blumenthal recently reported? And is it wise to assume that everyone who cares already knows? A friend of mine recently met a Yale senior who supported Kerry, but not enough to register to vote; when she pointed out that Bush would have four years to pack the courts, the young genius acknowledged that this thought had never occurred to him.
Maybe people are just complacent. By an amazing stroke of luck, there have been no vacancies on the Court in Bush's first term. Still, the current Court has been sitting for ten years, and the only Justice under 65 is Clarence Thomas. How much longer can God--who is obviously not a Republican--keep these spry oldsters going? Justice Stevens, the liberal stalwart, is 84! The next President will probably get one, two or even three nominations, and Bush has said he wants more Justices in the Scalia/Thomas mold. Depending on who leaves, the balance of forces may not change right away. But even if Bush merely trades a worn-out reactionary like the 80-year-old Rehnquist for a fresh young one, he's locking up a seat for the right wing on the nation's top Court--for what, the next thirty years? Don't rely on Senate Dems to hold out for a "moderate" appointment--especially if Bush plays the ethnic card and nominates a Hispanic. I can hear it now: How can we deny Torquemada the American dream?
What's the worst that could happen if Bush wins? The 5-to-4 balance the Court is famous for could tip the other way. Take abortion rights: Planned Parenthood v. Casey (1992), which affirmed Roe v. Wade (while permitting states to apply restrictions as long as they were not an "undue burden"), was 5 to 4. So was Stenberg v. Carhart (2000), which struck down Nebraska's "partial birth" abortion ban for not including a health exception. Some pundits, and of course Naderites, pooh-pooh feminists who fear Bush appointees would overturn Roe v. Wade. Bush wouldn't let that happen, they say, because that would wake up the sleeping pro-choice voter giant. Maybe--but why then is he nominating to the federal bench such anti-Roe zealots as Michael Fisher, John Roberts, Michael McConnell and John Rogers, and going so far as to give recess appointments to Charles Pickering and William Pryor? Why are antichoice Edith Jones, J. Harvie Wilkinson III and Janice Rogers Brown on the Supreme Court short list? The whole tenor of this Administration is to go for as much as it can get, to keep the Christian right happy, and to restrict reproductive rights in every conceivable way--down to the last stem cell. Once on the bench, the far-right, ideologically driven judges Bush favors could throw caution to the winds and act on their sincere hatred of abortion, politics be damned--Scalia and Thomas have been doing so for years.
State support of religion is another crucial battleground. Challenges to Bush's many faith-based initiatives are wending their way to the High Court--for example, the NYCLU is bringing suit against government funding for Salvation Army social service programs on the grounds that they are infused with religion (AIDS programs that teach only abstinence, for example), and have religious tests for employment. Two years ago, the Court ruled 5 to 4 in favor of a voucher program for parochial schools, not a good sign for people who believe in separating church and state. John Kerry is one of those people--if he gets to choose Rehnquist's replacement, you might not be compelled to pay taxes to keep condoms away from people with AIDS.
The truth is, there is hardly an area of life that will not be affected by the judicial appointments made in the coming years. Will the courts continue to dismantle your right to sue state governments in federal courts? By 5 to 4, the Supreme Court decided that federal protections against age discrimination don't apply to state workers. (More recently it upheld the Americans with Disabilities Act--insofar as it applied to the right of citizens not to have to crawl up the courthouse steps.) On the same states' rights theory, by 5 to 4 it threw out parts of the Violence Against Women Act. The Patriot Act? Immigrants' rights? The environment? Ballot issues, à la Florida? Whom do you want in charge of choosing the men and women who will decide the big questions sure to arise?
Right-wing legal activist Clint Bolick has said, "This election could be a twofer--we win the White House and the Supreme Court." Let's make it a twofer for civil liberties, civil rights--and counting every vote.
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