Six more days till the election. As of this writing (October 27), nothing is certain. The election polls are bouncing around like yo-yos. Clinton is back on the campaign trail, and we are reminded of what a luxury it was when all we had to worry about was Monica-gate, but the surplus was in the billions.
Politicians are running around and around the swing states, chasing those last slippery undecideds. According to some analysts, Bush enjoys a sudden uptick in popularity among black voters. That threw many for a loop, until it was explained that Republicans have been working black churches, bastions of social if not political conservatism, for their opposition to gay marriage. Now 18 percent of African-Americans seem to fear same-sex matrimony more than the doctrine of pre-emptive war or having their vote not counted. Jesse Jackson recently asked a group of black parishioners how many of their members had been personally confronted by some aspect of the crisis in affordable housing, or underemployment, or police corruption, or record rates of imprisonment, or the war in Iraq. Every hand in the room went up. Then he asked how many had a relative intending to marry someone of the same sex. There was not a single hand. Yet how completely has the latter displaced the former in our national debate. The gay marriage amendment seems to have become the Willie Horton of this election.
Then too, maybe Bush’s popularity among African-American voters has risen because he publicly denounced the 1857 decision of Dred Scott v. Sandford, in which decision Justice Taney proclaimed that black people had no rights that whites were bound to respect. Perhaps that good news–some of us had been wondering–swayed hearts and minds in the black community: Bush opposes slavery! We are a forgiving people. Better late than never. Surely it would be much too cynical to listen to those who have said that Bush’s reference to Dred Scott was a mere sop to the antiabortion wing of his constituency–that it was a coded reference to the putative right of fetal personhood to which he was referring. Surely he would just openly state his disagreement with Roe v. Wade–he’s already eliminated access to abortion for women posted overseas in the military, even if they want to pay for it themselves. Surely he would simply state his intention to appoint a Supreme Court that would overturn a woman’s right to choose rather than exploiting one of the unhappiest moments in our racial and juridical history. Surely.
But, alas, since the Administration is notorious for its perpetual obliqueness, the rumor mill is ablaze with hypotheses about what rights would look like for anyone, born or unborn, under a second Bush Administration. My favorite wakeup-without-coffee is the speculation that Clarence Thomas would be the next Chief Justice, when Rehnquist steps down. Bush has said that Thomas and Antonin Scalia would be the model for any appointments he might make. Scalia, the one who believes that capital punishment is OK, because as a believing Christian, there’s always the afterlife. Thomas, on the other hand, has said very little at all since ascending to the bench, and has written relatively few opinions. The ones he has penned, often as a far-right dissenter, rank him as the most conservative Justice of the last hundred years, but that will probably mean less in the coming political machinations than that he has been taciturn and meanspirited, traits that Bush seems to admire and reward.
Beyond that, there’s the open question about whom a second-term Bush would nominate to fill the vacancies sure to occur in the next four years. For a long time, the conventional wisdom was that White House counsel Alberto Gonzales would be put forward as the first Hispanic Justice. However, his little memo condoning the use of torture and brushing aside concerns about the Geneva Conventions as “quaint” ought to disqualify him, if there is anything like justice or sanity left. Perhaps not. My guess is that there will be a series of stealth nominations, some roster of quietly sinister candidates of whom no one has ever heard.
What’s at stake for the long term includes a range of challenges to the Patriot Act. The power to conduct secret, warrantless searches of homes and computers. The ability to detain people without charge and for indefinite periods of time. The right to protest in public places. In addition, it seems certain that a large number of voting-rights cases will work their way up to the Supreme Court. The answers to questions about everything from redistricting to electoral oversight will determine our future for decades to come.
Aside from voting, the purview of government accountability generally will be a major issue. Awarding no-bid contracts to insider-connected companies like Halliburton. Media concentration. Limits on cruel and seemingly ever more unusual forms of punishment. Preservation of national parks and wildlife refuges.
Government ability to regulate public health and safety are also on the line: The ability of citizens to sue federally regulated health plans. Capital punishment. Gun control. Immunity of gun manufacturers from suit. Access to the morning-after pill. Immigration policy.
All this hangs in the balance, because Bush favors strict constructionists and the kinds of true-blue believers in original intent who will upend anything they deem not within the ken of the Founding Fathers’ intent. Some, like Robert Bork, interrogate the legitimacy of much of the Bill of Rights. Others, like Scalia, have openly questioned the legitimacy of the entire line of civil rights cases that began with Brown v. Board of Education and have provided the underpinning for protection from bias for women, the disabled and the elderly. If Bush wins and Congress remains a Republican stronghold, I fear it won’t be long before we all end up like the benighted creatures in Orwell’s Animal Farm. Didn’t the Constitution say all of us were equal? Whenever did that little addendum whisper its way in–“but some are more equal than others”?