By Dr. Nayyer Ali

The Battle for the Supreme Court

November 11 2005

President Bush signaled his intent to push the Supreme Court in a sharply conservative direction by nominating Federal Appeals Court judge Samuel Alito to replace the retiring Sandra Day O’Connor. By doing so, he is finally engaging in what many on the left and the right will perceive to be a life or death struggle in the culture wars.
Why is this nominee so critical? Of the three branches of the Federal government, the Supreme Court is at once extremely powerful and at the same time insulated from the people. There are no elections to the Court. Presidents get to nominate a new justice when a current one dies or retires. Given the longevity of most justices, this amounts to perhaps one nomination every Presidential term. George Bush did not nominate a single justice in his first term. Congress, through the Senate only, gets to weigh in also as they cast a majority vote in favor of the nominee. Once on the Court, the new Justice has a lifetime appointment, and can rule any way he or she sees fit, with no real democratic check on their behavior or choices. The ultimate power of the Supreme Court is its power to interpret the law, and particularly to decide if laws are compatible with the Constitution or should be struck down as “unconstitutional”. It was the Supreme Court that called a halt to the Florida recount in December of 2000 and gave the election to George Bush.
In political terms, the United States has moved steadily to the right over the last 30 years. The Republicans first captured the Senate in 1980, after 25 years of Democratic control, and took the House in 1994 after almost 40 years of Democratic control. In Presidential elections, the Republicans have won seven of the last ten, and even in the three they lost, the Democratic candidate failed to collect at least 50% of the total vote. Given this dominance, you would think that the Supreme Court would be packed with conservative voices, and that the liberal agenda would be in full retreat.
But what has exasperated the right, particularly social conservatives such as born-again Christians who make up a big chunk of Bush’s core supporters, is that the liberals have kept control of the country, and seen their vision advanced. On every major social issue of the last thirty years, the Democrats got what they wanted. Civil rights, women’s rights, gay rights, the teaching of evolution, pushing the limits of popular culture, limiting the death penalty, abortion, expansion of medical care (even President Bush caved into the left with a massive prescription drug benefit for Medicare), reduced defense spending, expansion of earned income tax credits for the poor, environmental protection, and affirmative action are all areas where liberals have trounced the conservatives. Not even Ronald Reagan was able to reverse in any serious way this liberal edifice. What has made much of this possible has been the courts, and especially the Supreme Court. It has been the source of much of the left’s strength, and has dealt crippling blows to the social conservatives.
What so infuriates the right wing is that prolonged Republican control of the White House has not created a much more friendly Supreme Court. If there is one decision they want to change, it is the Court’s ruling in Roe vs. Wade over thirty years ago declaring that the Constitution grants women an implied right to have an abortion. As this was not the original intent of the authors, but a modern view, the conservatives want to put on the court judges who believe they should rule based on “original intent”. What has prevented this from happening is that several Republican appointments to the Court, including Reagan’s pick of Sandra Day O’Conner, turned out to vote much more liberal than was expected. Conservatives now want a justice they can be sure of, and in replacing the critical fifth liberal vote on the Court with a solid conservative judge, they hope to finally reverse the liberal takeover of American society. Liberals also see this as the stakes, which is why the fight is going to be very intense. Democrats lack a majority of the Senate, and if they cannot convince 7 Republicans to vote with them, they will have to engage in the obstructionist tactic of filibustering. Such a high-risk gamble may be the outcome of this nomination.
Comments can reach me at Nali@socal.rr.com.

 


 



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