Does it make any difference who wins the presidential election?
Both major candidates are so close to each other on so many major issues—immigration, trade, even foreign policy—that it’s very hard to tell, and many conservatives who usually vote Republican are asking why they should vote for President Bush at all.
One reason they should, according to conservatives who disagree with them, is the Supreme Court. Whoever wins the White House will almost certainly appoint some new Supreme Court justices over the next four years, because the current crop is getting so decrepit they won’t be able to swing their gavels much longer.
But one reason you shouldn’t cast a vote for President Bush based on who you might imagine he would appoint to the court is offered by Georgetown University law professor Mark Tushnet in the current issue of Legal Affairs. Quite simply, the reason is that Mr. Bush’s appointees would not be very different form John Kerry’s.
“A justice nominated by George W. Bush and confirmed by the Senate will be somewhat more conservative than a justice nominated by John Kerry and confirmed by the Senate,”Professor Tushnet writes. “Beyond that, there’s not much to say. The differences are going to be smaller than partisans on either side expect, and calculations that we can’t foresee will affect the politics of nomination and confirmation.” [Dull and Duller,September 2004]
Certainly the track record of the Republican Party over the years supports the professor’s view—maybe. We have what conservatives regard as a constitutional crisis in this country mainly because of the Republicans themselves.
Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens,Sandra Day O’Connor, David Souter and Anthony Kennedy were all Republican appointees. Not one is a reliable conservative, and some have earned themselves niches in the pantheon of liberalism and the annals of constitution-wrecking.
It’s perfectly true that reasonably conservative justices like the incumbent chief William Rehnquist and really consistent conservatives like Clarence Thomas and Antonin Scalia have been Republican appointees. But Mr. Bush’s own record so far is not so philosophically pure as to give any good reason for thinking he would appoint more like them.
Nor is it clear that even if he did appoint them they could be confirmed.
Professor Tushnet notes an interesting pattern from the recent history of Republican court nominees. Given the internal politics of the Republican Party, almost any judge the party nominates to the court will have to be against Roe v. Wade, the 1973 decision that overturned all state laws against abortion, and take a pro-life position.
“And being against Roe v. Wade is close to a death knell for a Republican nominee,” he writes. Clarence Thomas tried to claim in his own confirmation hearings that he had never debated the decision, but nobody believed him. Being pro-life is the major position the Republicans have to support in the politics of the Supreme Court, and being pro-abortion is the major position the Democrats have to support on the other side.
What that means is that the Democrats will savage any anti-abortion nominee the White House gives them, and it’s not clear that all Republicans will support him. The Democrats were able to sink the nomination of Robert Bork to the court by sheer vilification, and nothing the Republicans did could get him through.
Nor do Republicans always fight the justices the Democrats nominate. When President Clinton seemed about to nominate former liberal Democratic Sen. George Mitchell to the court, he was endorsed even before the appointment was made—by Senate Majority Leader Bob Dole. It’s just as well Mr. Mitchell was never nominated.
The blunt truth is that, aside from the anti-abortion forces, there just isn’t any constituency inside the Republican Party that is so strongly committed to a serious conservative vision of the Constitution to guarantee that a Republican administration will appoint a nominee who shares such a vision. Who they do appoint is determined by politics.
It’s why even Ronald Reagan gave us Sandra Day O’Connor (to cater to feminism).
I leave it to the conservative imagination to think of what would motivate George W. Bush in his appointments.
Professor Tushnet may be right that a justice appointed by President Bush would be “somewhat more conservative” than one named by John Kerry, but then again he might well be wrong.
The truth is that a Bush appointee might be far, far to the left of anyone Mr. Kerry could expect to get through the Senate.
Vote for Mr. Bush if you will, but don’t bet your ballot on what will happen to the Supreme Court if you do.