BUSH AND THE SUPREME COURT
What's at Stake and What we can Do
by David Cohen
President Bush should be taken at his word. When he says he wants his appointees to the Supreme Court to think the way Justices Scalia and Thomas do we had better believe him. That is short hand for the President keeping his political promises to economic social Darwinists and religious fundamentalists at the same time.
The President wants his appointees to reflect an extreme view of our Constitution, one that negates a broad understanding of what the Constitution has meant as a beacon of promise to all the people on how we govern ourselves.
The Bush focus on the Scalia-Thomas cloning of the Supreme Court is about making sure his view of governance extends into at least the 2030s. It's so far reaching in its effects on people that it will return us to pre-New Deal thinking. Therefore it is no exaggeration to believe that the American people face a clear and present danger to our public freedoms and personal liberties.
From Bush Administration policies, Federal Court trends, and a GOP-controlled House and Senate we face a three-pronged attack aimed at:
- Unraveling the "equal protection" clause of the 14th Amendment to the Constitution which goes to the heart of protecting civil rights for people of color, women and children;
- Restricting free speech by building a political climate of fear re-enforced through the Patriot Act, deportations, and IRS auditing of tax-exempt organizations and individuals;
- Limiting the power of Congress to use its constitutional authority under the commerce clause to address economic hardship, environmental degradation or create protections in the work place.
President Bush is likely to have as many as four appointments to the Supreme Court in his present term. While the Court has not advanced rights in recent years, it has for the most part thwarted the extremism of Scalia, Thomas, and Chief Justice Rehnquist. The right wing has felt blocked and is determined to change that direction.
The other part of the extremist agenda is to fill appointments that the Appellate Courts and trial judges at the District level with young ideological judges. While less visible than the Supreme Court, President Bush will have a whole bevy of these appointments.
What actions can be taken now that there is a clear Bush policy with a working majority in the Senate, but not 3/5 of the Senate Republican?
The response must be deeper than tactical opposition based on filibustering. Something substantially different is needed, though that may include filibusters on important matters.
First, "We the People" means something and an organized and resolute effort has to be made by the people to influence who serves in our judiciary. Just as the people's representatives make the laws so must the people themselves be involved in how laws are interpreted and especially so for the Constitution. Organizations such as People for the American Way, Alliance for Justice, and the Leadership Conference on Civil Rights can help us learn a good deal about proposed appointees. Their work needs to be supported by an alert and invigorated citizenry passionately and knowledgably protecting our Constitution.
Second, it is possible to identify substantial numbers of judges who are likely to move up the judicial ladder thereby opening up appointments at the Appellate and District levels. As these vacancies are identified we ought to be identifying candidates who are moderate and Republican. Such people exist although very few hold elected office. They might include local and state judges, people in state government, and people who have provided public service through Bar Associations.
Third, the appointment process is a political one and we need to act politically. We need to apply pressure on Senators, both Republican and Democrat, to suggest moderate candidates fit to be Federal judges. Similarly, we need to apply pressure on Senators in both parties to fight any Bush appointees who do not reflect such a balanced and mainstream orientation to the Constitution.
Fourth, we need to insist that being a smart lawyer alone does not qualify a person for a judicial appointment. Beliefs and values matter every bit as much or more. We do not want a repeat of a Scalia who had his appointment go through unvetted by a public process that could reveal the ideologies he would service as a member of the Court.
These key elements of strategy will happen only if we are able to make these appointments major public issues and engage the people and the media. There are powerful lessons to be learned from the successful campaign two decades ago to reject the President Reagan's appointment of Robert Bork to the Supreme Court. Michael Pertschuk provides an authoritative and lively account of the campaign in his book, A People Rising, well worth reading again today.
People used powerful symbols and told powerful stories to demonstrate their concern for the Constitution. People formed coalitions united on nothing but their opposition to Bork. Right to life people worked with pro-choice people, environmentalists with labor people, civil libertarians with people for whom civil liberties is not a high priority.
The same must happen again now. The people are deeply passionate about our Constitution and the people know how to work together.
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David Cohen is Co-Chair and Co-Founder of the Advocacy Institute in Washington and a veteran battler in judicial confirmation fights including the Bork battle. His email is: dcohen@advocacy.org .
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