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.

Enter Stage Right -- http://www.enterstageright.com