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Supreme Court slugfest

By W. James Antle III
web posted July 11, 2005

Delivering the Democratic response to the president's weekly radio address, Senate Minority Leader Harry Reid (D-Nevada) gave an example of the kind of Supreme Court justice who would be acceptable to members of his party: Earl Warren.

That would be the Earl Warren whose tenure as chief justice marked the beginning of the Supreme Court's extraconstitutional role as final arbiter in all social issues – and its place at the center of the nation's most contentious political debates.

This is tantamount to a Republican senator announcing that a Democratic president should model his high court picks after Robert Bork.

Reid cited the Brown v. Board of Education decision invalidating racial segregation as an example of how the Warren Court brought the country together. Yet he neglected to mention that many of that court's other key decisions – on prayer, Bible reading in the public schools and the rights of criminals – continue to bitterly divide Americans to this day.

The powers arrogated by Warren would be used by subsequent courts to keep states from executing murderers, mandate racial preferences and impose virtual abortion on demand. Far from creating national consensus, rule by the Supreme Court has made electoral politics even more divisive.

As Patrick Buchanan recently wrote, "Attacks upon court decisions seen as pro-criminal and anti-Christian have been a staple of Republican oratory that has given the GOP seven victories in 10 presidential elections and raised party strength from a third of the House and Senate in 1965, to majorities in both houses in 2005."

That's why activists on both sides are poised to spend millions of dollars on the confirmation fights ahead. While serious constitutional principles are at stake, mass constituencies on both the left and the right are fighting over the composition of a body more relevant to hotly debated cultural issues – ranging from same-sex marriage to partial-birth abortion – than the presidency or Congress.

These groups will issue competing press releases labeling potential nominees "extreme" or "mainstream," but for most these will be mere code words for their perceived positions on a handful of issues.

Justice Sandra Day O'Connor has already announced her retirement. As I write, Washington is buzzing with rumors of subsequent retirements, possibly including Chief Justice William Rehnquist.

At the grassroots level, both sides know what is at stake. But do their elected representatives inside the Beltway?

The Democratic leadership is tone-deaf when it comes to the public's antipathy toward judicial activism. House Minority Leader Nancy Pelosi (D-CA) managed to outdo her Senate counterpart's praise for Warren. In response to a query about the widely criticized Kelo v. New London decision, upholding eminent-domain seizures of private property to enhance economic development and maximize local tax revenues, Pelosi refrained from criticism, saying that the ruling was "almost as if God has spoken."

Thus a leading Democrat reinforced her party's image of being unable to distinguish between the Supreme Court and the Supreme Being. There has been no word on how this comports with the establishment clause of the First Amendment.

For his part, President Bush has chastised conservative activists who have poked holes in White House trial balloons about an Alberto Gonzales nomination for criticizing his friend. John Podhoretz has advanced the novel argument that "screaming about Gonzales in the way some on the Right are" could anger Bush enough that he might pick the attorney general to spite conservative critics.

But failure to deliver on Supreme Court nominees would constitute a failure to offer anything enduring to a constituency that supplied one-third of the ballots cast for Bush in the 2004 election. Picking another David Souter would make patsies of a crucial GOP constituency.

The relevant question, especially in the event of concurrent retirements, is how a nominee will affect the balance of the court. The outcome of this coming showdown will have implications that far outlast the Bush presidency. This is something Republican senators with an eye toward 2008 should keep in mind; so should grassroots activists, given the salutary effect of senatorial jockeying for conservative support in the mid-1990s.

Observers will bemoan the political polarization that will be on display when the confirmation fights begin in earnest. Constitutionalists can offer a solution: Get the Supreme Court out of policymaking and social engineering, and it will mitigate the conflict that attends each vacancy.

Pace Harry Reid, conservatives didn't create the current political divisions over the judiciary. It was Warren-era justices and others who hear in Supreme Court decisions the voice of God.

W. James Antle III is an assistant editor of The American Conservative and a senior editor for Enter Stage Right. The views expressed above represent his alone.


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