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Never Again Will We View the Judiciary as Nonpolitical | The Nation

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Never Again Will We View the Judiciary as Nonpolitical

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Wait until next season. I've already started practicing my chad-punching, and I suggest the same as therapy for all who feel ripped off by the collusion between the US Supreme Court's right-wing ideologues and George W. Bush's lawyers to prevent an accurate Florida vote count. The electoral process will survive and Bush may even learn to do the job, but the price of his victory is the court's denigration.

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Robert Scheer
Robert Scheer, a contributing editor to The Nation, is editor of Truthdig.com and author of The Great American Stickup...

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It took a non-ideological Republican appointee, a near-extinct breed in the GOP, to puncture the outrageous hypocrisy of the Antonin Scalia-led majority that defined a fair recount by the singular standard that would leave Bush the winner.

In his dissent, John Paul Stevens wrote the indelible postscript to this judicial farce: "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."

The so-called court conservatives simply had no sense of shame or even proportion. Think of the conflicts of interest we learned about only in the last few days: Clarence Thomas's wife is helping the conservative Heritage Foundation recruit workers for a Bush administration, and Scalia has two sons associated with key law firms representing Bush--one a partner of Theodore Olson, who argued Bush's case before the high court.

It's also common knowledge that Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor indicated a desire to retire, but only if Bush won and could replace them. In that event, Bush would likely appoint Scalia as chief justice.

Common decency, let alone judicial integrity, should have left the court's majority more hesitant in acting as agent for selecting the next President. Instead of taking the high road and leaving the matter where it belonged with the Florida Supreme Court--according to the federal high court's own oft-avowed states' rights precepts--Scalia and company insisted on halting the recount. Why? Because there wasn't time to do it right. But whose fault was that? Bush's and the US Supreme Court's.

Had the statewide count of disputed ballots been allowed to fairly conclude, it would have shored up our next President's legitimacy. If Bush had won the electoral vote after a fair count in Florida, it would have taken the sting out of his ascending to the presidency despite losing the national popular vote.

The US Supreme Court's heavy-handed intrusion was as destructive of confidence in our political system as it was unnecessary. As Justice Stephen G. Breyer wrote in dissent, the majority ruling represented "a self-inflicted wound--a wound that may harm not just the court but the nation."

Never again will a President's appointment of a federal judge be viewed by the public--and more important the Senate, which must confirm it--as a neutral, nonpolitical act. Recall that even such hard-line ideologues as Justices Thomas and Scalia were confirmed with votes from Democratic senators who thought it important to give the President the benefit of the doubt. Next time anyone of discernible ideological bias is nominated, there will be unprecedented senatorial gridlock. For that reason, the real test of the Bush presidency will be his appointments to the federal courts.

It is the same test faced by his father: Will they be true moderates, such as Justice David H. Souter, a man capable of complex legal thought, or another Thomas, whose most sentient act is to look to Scalia, then vote? What a sad comment that the man who replaced Thurgood Marshall as the only African-American on the court should now, in helping to block the recount, so brazenly mock Marshall's lifelong crusade to insure the sanctity of the black vote.

In any event, the court has handed the nation George Bush as President, and we can live with that and even entertain hopes that he will rise to the occasion, despite an obvious lack of preparation. Deep down, if one can presume such a thing, he seems a decent sort. If he just keeps in mind that most of the voters rejected him, he might resist Tom DeLay's ultra-rightists in the House and pursue a moderate legislative course. In any case, now that Joseph Lieberman will retain his seat, the Senate will be evenly divided, and centrists of both parties will be calling the shots.

But what we cannot live with is an even more politicized judiciary dominated by right-wing ideologues. The GOP's far right will want strong proof that its aggressive campaigning for Bush is rewarded, and its prime goal is complete control of the federal judiciary, which is why Senate Republicans blocked scores of Bill Clinton's judicial appointments. However, if Bush attempts to reward his rabidly conservative backers by placing their favorites in high positions in the federal judiciary, he will tear this country apart. And next time, his opponent's chads will be punched so forcefully that even the Supreme Court won't be able to save him.

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