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An argument to scare progressives into voting Democrat
What about the Supreme Court?

October 15, 2004 | Page 8

NICOLE COLSON looks at the impact of elections on the Supreme Court.

THE DEMOCRATIC Party is recycling an argument that progressives can set their watches by. Every four years, before the presidential election, the Democrats try to scare liberals into submission--to vote for a Democratic candidate they don't necessarily agree with because the future of the Supreme Court is at stake.

"This election is about far more than who will control the White House for the next four years," reads the latest example, a statement by the "Save the Court" campaign, which is sponsored by the Democratic National Committee. "It is about decisions the Supreme Court will issue that will affect us for generations to come."

Progressive rulings--everything from abortion rights to gay rights to affirmative action--are "hanging by a thread," goes their argument, so this election is "too serious" to consider voting for anyone other than the Democrat.

The same case has been made every four years for the last few decades. But this year, it has taken on a more hysterical tone. With eight justices over age 65 and four over age 70, many people believe that the next president will appoint at least one, and possibly several, justices. If Kerry isn't elected, says the "Save the Court" Web site, civil rights and voting rights, women's rights and reproductive freedom, environmental protections, disability rights, workers' rights, gay rights and public education are all at stake.

It's understandable why progressives would fear the appointment of reactionary justices. Members of the Supreme Court are appointed for life, with no constitutional accountability to anyone. And several crucial court decisions do rest on a narrow majority.

But the simple truth is that Democratic presidents have not automatically produced more liberal Supreme Courts, nor have Republican presidents necessarily made the Supreme Court more conservative.

For one thing, justices nominated by Republicans have frequently gone on to support liberal positions, while justices nominated by Democrats have backed conservative ones. More crucially, the personal ideology of individual justices has frequently proven less important that what is going on in society as a whole--above all, whether public opinion or mass movements are putting pressure on the court.

Thus, while the Court found in 1989 that it was not "cruel and unusual" to execute the mentally retarded, in 2002, it declared exactly the opposite--largely because, as the majority of justices explained in their ruling, "polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong." In other words, public opinion--which has been impacted by a growing anti-death penalty movement in states like California and Illinois--matters.

This has played out in other important Supreme Court cases as well. In 1973, when the landmark Roe v. Wade case was decided, granting women the right to abortion, the court was dominated by six Republican-appointed justices. However, the Roe case took place at a time when a growing women's movement was bringing thousands of people out into the streets across the U.S.--and changing opinions about women's roles at home and in the workplace.

Conservatives have fought back against the right to choose ever since, chipping away at abortion rights with a host of restrictions. Protest has once again been the key to keeping Roe alive. When the anti-abortion tide peaked in the late 1980s and early 1990s with two Supreme Court cases that threatened to overturn Roe, huge pro-choice marches organized by the National Organization for Women in 1989 and 1992 made a crucial difference.

"A decision to overrule Roe's essential holdings," wrote Justice David Souter, a Bush Sr. appointee, "would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy." The point is that the justices--whatever they thought about abortion rights themselves--concluded that they couldn't overturn Roe without risking a loss of credibility, likely extending to millions of people flouting their decision.

Beyond the question of what sways the political decisions of the Court, progressives looking to John Kerry to "save" the Supreme Court are suffering from historical amnesia. They have forgotten the record of Bill Clinton.

Though it's true that Clinton nominated liberal Ruth Bader Ginsburg, she was one of the few liberal judicial appointments that he made during his eight years in office. Another of Clinton's nominees, Justice Stephen Breyer, is a multimillionaire with close ties to the Lloyd's of London financial empire.

"When he was appointed, it was broadly assumed that Breyer would take a pro-choice stance in the abortion debate...and for many progressives that was sufficient justification for supporting his nomination," commented the Progressive magazine in 1996. "Right-wing activists took a different approach to Breyer, however. Aware that the high court had a pro-choice majority, and that the vast majority of American voters preferred that abortion rights be maintained, conservatives looked to Breyer's stances on other issues. On economics, in particular, they liked what they saw." Conservative activist and Reagan Administration insider Bruce Fein hailed Breyer's appointment as "better than anything that could have been hoped for by George Bush."

During his 1992 campaign, Bill Clinton pledged to nominate judges at all levels of the federal court system who would uphold civil rights, women's rights, and laws supported by the labor movement and environmentalists. But when he entered office, Clinton's aides announced that they intended to "depolarize" appointments and shape "a judiciary truly independent of any pre-set agenda, liberal or conservative." As the Progressive concluded: "While that sounds noble enough, the translation has been: 'No liberals need apply.'"

Only time will tell if John Kerry is taking a page out of the Clinton playbook. Last year, Kerry pledged that he was "prepared to filibuster, if necessary, any Supreme Court nominee who would turn back the clock on a woman's right to choose." He promises on his campaign Web site that, as president, he would "only appoint judges with a record of enforcing the nation's civil rights and anti-discrimination laws."

But this is the same John Kerry who brags that, as a senator, he voted in favor of the nomination of anti-choice right winger Antonin Scalia. Kerry has also said that he would be willing to appoint anti-abortion judges to lower courts--and that same-sex marriage rights are an issue that should be left up to the states, a clear indication that his nominations could be conservative.

Kerry's own rhetoric suggests that he would do little to fight hard for liberal appointments. "Whenever one party attempts to turn judicial decisions into political debates, it causes Americans to doubt the independence of the courts and to question their role," he said in March. "With divisions so great, it is important that the next appointment to the Supreme Court be an individual who can bring consensus, not conflict. At a time of war, the American people have no stomach for another partisan confirmation battle. If a retirement opens up, our discussion should be an occasion to focus on the Constitution and what's right, not on confrontation and wrangling."

The Anybody But Bush crowd says we can't risk the future of the Supreme Court by voting for anybody but Kerry. But are they prepared to claim that we can trust the man who spoke these words? The only way to insure our rights is to unite and fight when they are attacked--and putting our trust in politicians only sets back that effort.

The Supreme Court guessing game

THERE ARE few things that a president gets to do with the lasting impact of nominating a Supreme Court justice. But often, presidents often don't get what they bargained for--because changing public opinion and social struggles frequently have more of an impact on the justices than the politics of the president who appointed them.

Try guessing which Supreme Court justice was nominated by a Democrat and which by a Republican:

William Brennan
Played a major role in Supreme Court decisions that required busing to desegregate public schools; banned officially sponsored prayers and Bible readings from public schools; and strengthened free speech and free press rights. Supported rulings in favor of affirmative action and abortion rights.
Appointed by: Republican Dwight Eisenhower

Byron White
Opposed affirmative action; opposed the 1966 Miranda v. Arizona ruling that requires police to recite constitutional rights to those they arrest; was the main opponent of the 1973 Roe v. Wade decision; crafted a 1984 decision allowing police to use evidence unlawfully seized through a defective search warrant.
Appointed by: Democrat John F. Kennedy

Warren Burger
Wrote the opinions that established busing as a tool to end segregation and forced Richard Nixon to release the Watergate tapes; favored abortion rights in Roe v. Wade.
Appointed by: Republican Richard Nixon

David Souter
Took a range of liberal positions, including upholding affirmative action and abortion rights, and ruling that the Boy Scouts of America should be required to accept gay scoutmasters.
Appointed by: Republican George Bush Sr.

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