COMMENTARY: Slouching Toward Judicial Armageddon

c. 2005 Religion News Service (UNDATED) We don’t know the man or woman President Bush will choose to fill Justice Sandra Day O’Connor’s sensible shoes on the Supreme Court, but we do know this: Bush will choose “confrontation” over “consensus” in making his selection. The “extremist” he picks will be a sop to the “radical […]

c. 2005 Religion News Service

(UNDATED) We don’t know the man or woman President Bush will choose to fill Justice Sandra Day O’Connor’s sensible shoes on the Supreme Court, but we do know this: Bush will choose “confrontation” over “consensus” in making his selection. The “extremist” he picks will be a sop to the “radical right” and a threat to the Magna Carta.

(FILL IN NOMINEE NAME)’s America will be a land where shackled women will be forced into back alley abortions, African-Americans will sit at the back of the bus, and students will be forced to recite the Lord’s Prayer. Republicans will try to “rush through” the nomination without adequate hearings, having instructed the nominee not to answer questions about specific legal issues and refusing to pursue the issue of when the nominee stopped beating his or her spouse. Democrats will have no choice but to try to delay a vote (don’t call it a filibuster) until the White House hands over the documents they demand. …


We know all this because Democrats have not been shy about divulging their war plans. As Mike Allen reported in Sunday’s (July 3) Washington Post, “Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate.”

Their early line is that it’s up to Bush how ugly the battle becomes. Pick a “nonideological,” “moderate” or “consensus” candidate whom Democrats bless beforehand or face a protracted war. Of course, Democrats didn’t urge President Clinton to pick such nominees to maintain the court’s balance when he chose Ruth Bader Ginsburg (a former lawyer for the American Civil Liberties Union) or Stephen Breyer (a former staffer for Sen. Ted Kennedy). Still, they were quickly confirmed. Their hearings occurred less than two months after they were named, and the Senate approved them two weeks later with GOP support. In short, the nomination of these two liberals didn’t spark trench warfare along Pennsylvania Avenue.

Kennedy has threatened longer hearings if Bush’s pick is “evasive.” But will refusing to answer questions on specific legal issues constitute evasiveness? It wasn’t back in 1993, when Delaware Democrat Joe Biden, then chairman of the Senate Judiciary Committee, told Ginsburg: “You not only have a right to choose what you will answer and not answer, but in my view you should not answer a question of what your view will be on an issue that clearly is going to come before the court.”

It’s hard to believe Democrats will let a Bush nominee heed Biden’s advice. There’s just too much at stake, in their view and the views of their interest groups.

Just what is at stake for them? Well, consider a typical reaction to the high court vacancy: “In the coming week, the president and Senate will decide whether we have a Supreme Court that will preserve the social justice achievements of the 20th Century,” said Ralph Neas of People for the American Way, which held that “our very national identity hangs in the balance.”

And you thought we were just replacing one member of a nine-member court in one of the three branches of one level of government.

This outsized rhetoric _ and the campaign-style battle both sides are gearing up for _ suggests how distorted the role of the Supreme Court has become on the left. Justices aren’t seen as mere interpreters of our Constitution and laws. They’re treated like legislators or pols. They’re seen as “votes” for this or that policy and talked about as being moderates. (What is “moderation” when it comes to interpreting the Constitution?) Liberals demand jurists reach the proper policy result or make the desired promise.


The left seems to have forgotten that two other branches of government and 50 states also safeguard the social justice achievements of the 20th century. On abortion rights, for example, O’Connor’s exit will still leave five votes for Roe v. Wade. And even if Roe were reversed, the issue would simply return to the states. Legislators and governors would still have a say.

The conclusion of this one-minute guide to our upcoming nomination Armageddon:

The Senate will vote, and Bush’s pick will be approved. Bush backers will be thrilled, Bush bashers catatonic, and we’ll all get ready to wake up and do it again.

KRE/RB END REINHARD

(David Reinhard is an associate editor of The Oregonian of Portland, Ore.)

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