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Supreme Court

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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.

That’s exactly why President Eisenhower gave us Earl Warren (a payoff for his support in the 1952 GOP convention) and William Brennan (to pander to the Irish Catholic vote).

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.

• Category: Ideology • Tags: 2004 Election, Supreme Court 
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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.

• Category: Ideology • Tags: Supreme Court 
Sam Francis
About Sam Francis

Dr. Samuel T. Francis (1947-2005) was a leading paleoconservative columnist and intellectual theorist, serving as an adviser to the presidential campaigns of Patrick Buchanan and as an editorial writer, columnist, and editor at The Washington Times. He received the Distinguished Writing Award for Editorial Writing of the American Society of Newspaper Editors (ASNE) in both 1989 and 1990, while being a finalist for the National Journalism Award (Walker Stone Prize) for Editorial Writing of the Scripps Howard Foundation those same years. His undergraduate education was at Johns Hopkins and he later earned his Ph.D. in modern history at the University of North Carolina at Chapel Hill.

His books include The Soviet Strategy of Terror(1981, rev.1985), Power and History: The Political Thought of James Burnham (1984); Beautiful Losers: Essays on the Failure of American Conservatism (1993); Revolution from the Middle: Essays and Articles from Chronicles, 1989–1996 (1997); and Thinkers of Our Time: James Burnham (1999). His published articles or reviews appeared in The New York Times, USA Today, National Review, The Spectator (London), The New American, The Occidental Quarterly, and Chronicles: A Magazine of American Culture, of which he was political editor and for which he wrote a monthly column, “Principalities and Powers.”