I’m surprised at how many otherwise thoughtful people seem convinced that this election “makes no difference.” In my very first Nation column, I quoted Justice Antonin Scalia, who, during a 1997 visit to Columbia Law School, stated publicly that if Brown v. Board of Education came to him as a case of first impression, he would vote against the majority. Most of the federal judiciary are Reagan/Bush appointees. There are an unprecedented number of judicial openings right now because of the unprecedented blocking of Clinton appointees maneuvered by the Republican-controlled Judiciary Committee. A sense of urgency thus prompted me to cull an unscientific sampling of lawyers, writers and human rights activists–all of whom feel that this is an important election in which to make one’s voice heard.
Charles Ogletree Jr., professor, Harvard Law School: “The most important election in recent memory will occur on November 7, 2000. George W. Bush, who favors Antonin Scalia and Clarence Thomas, and Al Gore, who favors someone in the mold of Thurgood Marshall and William Brennan, have radically different views of the next Supreme Court appointments. With Roe v. Wade, affirmative action and majority-minority districts at stake, there is no graver choice facing the nation than a progressive Gore Court or a reactionary Bush Court.”
Reva Siegel, professor, Yale Law School: “Last term, the Court invalidated provisions of two different civil rights laws, holding that Congress lacked power to enact the antidiscrimination statutes–something the Court has not done since the nineteenth century. After these rulings, it is no longer clear how statutes like the Family and Medical Leave Act or the Pregnancy Discrimination Act can be enforced against state employers, or what kind of hate crimes legislation the Congress can enact. But more is at stake than the particular provisions of the Age Discrimination in Employment Act or the Violence Against Women Act, which the Court struck down last term, or the provisions of the Americans With Disabilities Act, which the Court is considering this term. The question is whether the Court continues to recognize and respect the federal government’s power to prohibit discrimination as that power has been exercised by Congress in the decades since passage of the Civil Rights Act of 1964.”
Richard Matasar, dean, New York Law School: “Judicial appointment is the stealth issue of every national election. While abortion and crime occupy the attention of the press, the judiciary can also carry on a quiet revolution in its allocation of authority between state and federal government. The Republican judiciary has already significantly shifted the distribution of power between governments; this election can break or solidify that shift.”
Maivan Clech Lam, professor, City University of New York Law School at Queens College: “The Supreme Court’s rulings on state and federal power are very likely in the next years to determine issues of sovereignty important to indigenous Hawaiians and possibly all tribes in general.”
Bob Wing, editor, ColorLines: “The prospect of an entrenched reactionary Supreme Court majority is awful…. However, I wish that I was more confident that Al Gore, who is associated with the Democratic Leadership Council’s center-right wing of the Democratic Party, would reverse that trend.”
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Peter Gabel, president, New College School of Law: “I’m not sharply critical of those who want to vote for Gore to protect the Court, but I do think they overestimate the Court’s role as an active progressive power and fail to see its essential commitment to maintaining a center (whether center-right or center-left). It is movements in society that motivate the Court to move. A real left needs to do the opposite of defending the empty center, which is perpetually self-erasing and actually blocks the development of a progressive movement. Instead, we must try to emerge into public visibility–visibility to one another!–by voting for Ralph Nader.”
Jill Nelson, writer: “I’ve been thinking that it’s the height of the ever-growing class-based disconnect in this society for people who consider themselves left or progressive or liberal to run the ‘I’m going to vote for Nader because there’s no difference between Gore and Bush.’ Rest assured, I’m not happy with any of ’em, but I’m very clear about the importance of Supreme Court appointments and for that reason will vote for the lesser evil, which is the real, disappointing, difficult nature, it seems, of democracy as we know it. The alternative is for me to delude myself that an abstract notion of principle trumps class privilege, which it doesn’t. Sure, no matter who’s on the Court, me and mine can have abortions and hire top attorneys and otherwise have the possibility of buying ourselves out of whatever mess we’re in, but that’s not enough. For me, democracy is fundamentally about community, and to paraphrase Reagan in that movie, what about the rest of us?”
Sydelle Pittas, attorney: “In the course of work on a television series I produced for the Women’s Bar Association on ‘Your Legal Rights,’ I interviewed almost all of Massachusetts’ sitting federal judges. From them I learned a few things that showed me how important it is to have Justices who understand the experiences of real women. Justices are human beings, and while they are impressive in how mightily they strive to find the law rather than make it, how they make those findings necessarily comes from their own understanding, based at least in some part on their experience.”
Bill Ong Hing, professor of Law and Asian-American Studies, University of California, Davis: “People of color and other traditionally subordinated groups have few institutions upon which they can rely. Their skepticism of the judicial system’s desire to respond to their plight has reached a new high point, as the Court molded by Nixon-Ford-Reagan-Bush (Carter made no appointments) has come to dominate the nation’s jurisprudence…. Whether and to what extent, if any, the Supreme Court serves as an agent or ally of social change is debatable. But a progressive voice of a Supreme Court majority–open to the views and experiences of those who have been marginalized–would foster a culture (and hope) for change in other mainstream institutions.”
