Getting serious about the Supreme Court

By W. James Antle III
web posted November 7, 2005

"Racist, sexist, anti-gay, right-wing judges go away!" So the
young protestors chanted when Judge Samuel Alito was
nominated to the Supreme Court. The Harriet Miers interlude,
pitting President Bush against his own base, has been replaced
with a bare-knuckled ideological scrap between the left and the
right.

But before Ms. Miers shuffles off to join Bernie Kerik, Lani
Guinier and Douglas Ginsburg in the pantheon of failed
presidential nominations, we might pause to reflect on one little
noticed lesson from her 15 minutes of fame: it may have marked
the first time conservatives took the courts as seriously as their
liberal counterparts.

This may seem a strange statement, since opposition to liberal
activist judges has been a pillar of the modern American
conservative movement and a fixture in Republican campaign
speeches for decades. Fifty years ago, conservatives cried
"Impeach Earl Warren!" Today, the biggest voting bloc on the
right was pressed into political action by Supreme Court rulings
that expelled the Bible from public schools, banished even the
most innocuous nonsectarian prayers and legalized abortion
throughout the country.

As important as the composition of the federal judiciary is to
nearly ever cause conservatives hold dear, the right has simply
not fought this battle by the same rules as their ideological
opponents.

Consider: no Democrat likely to win the party's presidential
nomination would knowingly appoint someone who believed
Roe v. Wade was wrongly decided to the Supreme Court.
Barring a post-appointment conversion, this generation will never
see another Bryon White. Bill Clinton, Al Gore and John Kerry
did not even attempt to conceal this fact. Roe will almost
certainly be a litmus test for the next Democratic president
(although as Timothy Carney notes, there is no shortage of pro-
choice liberals willing to acknowledge that the ruling was bad
constitutional law).

By contrast, Republican presidents nominate both supporters
and opponents of Roe. Harry Blackmun, Roe's architect, was
nominated by Richard Nixon. John Paul Stevens, who is pro-
Roe, was picked by Gerald Ford. Ronald Reagan nominated
one anti-Roe associate justice (Antonin Scalia) and promoted
another to chief justice (the late William Rehnquist), but he also
selected pro-Roe Sandra Day O'Connor and Anthony Kennedy.
George H.W. Bush's two Supreme Court picks split on Roe.

Republican presidents claim to have never even discussed the
1973 decision with their prospective nominees, much less made
it a litmus test for consideration. To some extent, this reflects the
fact that Roe polls well (though the specific abortion policy in
mandated does not). But given the number of Republican-
appointed justices willing to affirm Roe, there may be some truth
to these denials.

When Republican presidents sought by their judicial nominations
to undo the handiwork of the Warren Court, Democrats and
liberal activists did not take long to spring into action. They
defeated Nixon's choices of Clement Haynesworth and Harold
Carswell, clearing the way for future nominees like Blackmun
and Lewis Powell. They let Scalia slip through by 98 to 0 in
1986 largely because the Democratic Senate minority was
fighting Rehnquist's promotion.

That was just practice for the unprecedented onslaught against
Robert Bork in 1987. Sen. Ted Kennedy accused Bork of
wanting to force blacks to eat at segregated lunch counters while
women died from back-alley abortions. Liberal Republicans, like
current Senate Judiciary Committee Chairman Arlen Specter,
defected. Borking was born.

Another borking was attempted against Clarence Thomas in
1991. He was savaged by activists who revile him to this day
and embarrassed by the Anita Hill episode. Thomas' nomination
prevailed only because ten, mostly Southern and conservative,
Democrats broke ranks to confirm him.

Yet when it came time to vote on Ruth Bader Ginsburg—whose
record and public statements included at least as much red meat
for the right as Bork's did for the left—she was given a pass. She
was allowed to avoid answering detailed questions about her
judicial philosophy. Only Jesse Helms, Don Nickles and New
Hampshire's Bob Smith opposed her.

To be sure, Senate Republicans—especially once they were in
the majority after 1995—gave Bill Clinton plenty of trouble on
some of his lower court appointments. Republicans who would
today insist that a president is entitled to a straight up or down
vote on all his nominees were then engaging in obstructionism.
But there was no organized, concerted campaign comparable to
the liberals'; Clinton's Supreme Court picks sailed through with
strong bipartisan support.

Indeed, Republicans internalized the wrong lessons from the
Bork experience. Instead of unashamedly raising the banner of
constitutionalism, they sought to compete by insisting that
Republican-appointed judges shouldn't have to answer any
questions about their judicial philosophy. Potential judges should
keep quiet about their opinions and accumulate no paper trail.
But the outcome of this stealth nominee strategy is that nearly half
the Republican Supreme Court appointments since the
Eisenhower administration have disappointed conservatives.

Before Harriet Miers, the only time conservatives sank a
Supreme Court nominee was when they opposed the elevation
of Abe Fortas to chief justice. But even then, judicial philosophy
wasn't the sole reason for Fortas' defeat. There were concerns
about ethics and cronyism. Lyndon Johnson was by that time a
weakened president and opposition to Fortas was bipartisan.

When conservatives went against a Republican president on
Miers, they were saying that judicial philosophy matters. They
were insisting that the makeup of the federal courts matters.
Instead of allowing all the advocacy to come from the other side,
these conservatives were arguing that scarcely any issue matters
more than forging a constitutionalist majority on the Supreme
Court.

Only time will tell whether conservatives retain that fighting spirit.
If the early salvos against Alito are any indication, they are going
to need it.

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