Archive for Tuesday, October 5, 2004

Court appointments keep on giving

October 5, 2004

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— Could we turn our attention for one brief moment from the rough and tumble world of presidential politics to the serene and cerebral world of the Supreme Court?

No? Then, how about if we turn our attention from the rough and tumble of presidential politics to the rough and tumble of Supreme Court politics?

The court opened Monday just in time for its quadrennial and cameo appearance on the political stage. As the dignified justices filed into the dignified chamber, there was a rather undignified murmur from the professional court watchers:

Say, aren't eight of the nine members on Medicare? Isn't John Paul Stevens 84? Didn't Chief Justice William Rehnquist just turn 80? How is Sandra Day O'Connor, a survivor of breast cancer? And Ruth Bader Ginsburg, who had colon cancer? Everybody feeling OK? Anybody ready to retire to a golf course in Arizona?

This assessment will be accompanied by a bevy of professional handicappers laying odds on how many picks the next president could get. The number crunchers will remind us that we've gone 10 years without a new justice, the longest dry spell since 1823. The numerologists will say that appointments come in clumps -- Nixon got four in four years, Reagan/Bush got five in five years. And the horse-pickers will predict a different fate for the law if, say, Rehnquist is replaced by a Kerry pick or Stevens is replaced by a Bush choice.

This fairly unseemly and sometimes ghoulish speculation is an outgrowth of the belief that the robes of the Supremes aren't just black. They are also red and blue.

The court may still be the most respected institution in the country. But the knock-down, drag-out nomination fights of the past -- see Clarence Thomas -- and the locked-in state of Supreme Court split decisions have all made the justices seem more partisan than impartial.

The court's reputation was hardly enhanced by its role in the 2000 election, a disaster replayed through the eyes of some disillusioned clerks in the current issue of Vanity Fair. After the 5-4 decision put Bush in the White House, the dissenting Stevens identified the real loser this way: "It is the nation's confidence in the judge as an impartial guardian of the rule of law."

What makes the issue so central now are the sheer number of important decisions that are 5-4 or 6-3. An analysis done by the People For the American Way concluded that 100 Supreme Court precedents would be overturned with one or two more conservative justices.

In speeches, the Bush-Cheney team talks in atmospheric terms about "activist judges" and "strict principles." But on conservative talk shows and in rallies, people talk about overturning Roe v. Wade and getting prayer in the schools, about eliminating affirmative action and turning back gay rights.

Conservatives get it. As a lobbyist for the Christian Coalition said, "If you ask people in this group their top priority, the first thing they would say is changing the U.S. Supreme Court." Activist Clint Bolick told a reporter, "This election could be a twofer -- we win the White House and the Supreme Court."

People who don't use stare decisis in their everyday speech are much less likely to think of the court when they go to the ballot box. Even pro-choice liberals, after a few election cycles, may have been lulled by cries of "wolf" and disbelief that the court could overturn abortion rights.

What's at stake are not just social issues but environmental issues, workers' rights, voting rights, and the constitutional basis of progressive government. As Ralph Neas of People For the American Way says, "What's really scary is if they get another Scalia or two, they'll continue to win over the next 40 years, whoever is president."

No, not every president gets the justice he picks. Think David Souter. But in 2000, the president identified those conjoined justices Scalia and Thomas as his models. Since then, many of his nominees to lower courts have out-Scalia-ed Scalia.

Today Leon Holmes, the former president of Arkansas Right to Life who wrote that "the wife is to subordinate herself to her husband," serves on the Arkansas district court. As for William Pryor, the Alabama attorney general who said that "God has chosen through his son Jesus Christ, this time and this place for all Christians ... to save our country and save our courts"? Bush was so fond of the controversial Pryor he sneaked him into a temporary appeals court slot while the Senate was in recess.

In presidential politics we're voting for four more years. In the Supreme Court, we're voting for 40 years.

On Monday, the court will open with the traditional cry "Oyez, Oyez, Oyez." Maybe they should be saying "Uh-Oh."




Ellen Goodman is a columnist for Washington Post Writers Group.

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