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.
