If there’s any good reason to vote for one major party candidate over the other this year, it’s probably the appointments to the Supreme Court he’s likely to make. The court is the staple reason the Republicans have invoked for the last eight years to argue why conservatives should vote for them instead of a third party. Voting third party, they claim, just makes it easier for the Democrats to win and control the future of the court for the next generation.
With the average age of the nine Supreme Court justices at a wheezing 65, the next president will almost certainly do just that. This week the Wall Street Journal explored who the two main presidential candidates are likely to pick if they get the chance, and how their choices will shape the court’s and the country’s future.
The conventional wisdom, not challenged by the Journal article, holds that Republican George W. Bush would pick conservative justices and Democrat Al Gore would choose liberal ones. But based on what the two gentlemen have said publicly so far, that’s only half true.
The half that’s true is what Gore would do. The Journal quotes him as telling his audiences, “Not only a woman’s right to choose, but a lot of our individual rights and civil rights are going to be at risk if the Republican Party controls the majority on the Supreme Court for the next 30 or 40 years.” Translation: I, Gore, will pick justices ideologically and politically to protect and advance abortion, affirmative action, homosexual rights and other left-wing causes.
It would be nice if Bush offered the opposite pole by vowing to appoint justices as conservative as the liberals and leftists Gore plans to scrape up. But he doesn’t. That’s the half that isn’t true.
During the primaries this year, the question of who and what kind of justices Bush might pick hardly ever came up, and when it did, as when evangelical candidate Gary Baker prodded him on whether he’d pick anti-abortion justices, the Texas governor dodged it. As the Journal article puts it, “Mr. Bush generally was mum in the party primaries, except to demur each time Mr. Baker goaded him … to pass the anti-abortion ‘litmus test’ by promising to name only anti-abortion justices. The Texan would vow only to choose justices who narrowly interpret the Constitution.” That answer, of course, is like vowing to appoint officials who are law-abiding.
The truth is nobody really knows what kind of Supreme Court Bush might create. From a conservative point of view, the worst Supreme Court justices in American history — Earl Warren and William Brennan — were both appointed by a Republican president, and the most liberal justice sitting on the bench today, David Souter, was appointed by Bush’s father. Even two of the justices named by Ronald Reagan, Anthony Kennedy and Sandra Day O’Connor, are what the Journal calls “swing justices.” Just because the president is Republican or even an avowed conservative doesn’t mean he’ll pick conservative justices.
Bush has little record of picking judges in Texas, because down there, they elect judges. But he has made interim judicial appointments, and from the way liberal Harvard law professor Randall Kennedy described those appointments last fall, conservatives ought to worry.
Writing in The American Prospect last November, Professor Kennedy concluded that Gov. Bush made “interim appointments that even liberal observers have applauded. He has elevated to the bench highly competent, middle-of-the-road attorneys who are well respected by the state bar. In general, moreover, Bush, as governor, has distanced himself from the right wing of the state Republican Party in the process of forging the moderate-conservative image whose attractiveness is clearly making him a formidable candidate for the presidency.”
But Professor Kennedy is by no means keen on Gov. Bush because he thinks (or thought when the article was published last November) that in order to win the GOP nomination the Texas governor would “be forced to make significant concessions to the powerful right wing of the national Republican Party.” One such concession would be to pick Supreme Court appointments the right wing approves of.
That’s dubious. Bush may have swung to the right during the primaries, but now he’ll probably swing the other way to recapture the center. Bush won the nomination without even talking very much about the Supreme Court and made no known pledges to the right. And what that, as well as the governor’s silence on the court, in contrast with Gore’s explicit pledges about it, tells us is that a Supreme Court shaped by the hand of George W. Bush just might not be very different from one shaped by the hand of Al Gore.