The Supreme Court as Scare Tactic

By Jeff Milchen, Pacific News Service. Posted October 31, 2000.

The Supreme Court has been placed in the spotlight in the presidential race once again, but despite all the attention, citizens receive few facts from either major party candidate.

Gore's campaign has played the fear game, using the Supreme Court as trump. "We can't let George Bush select justices" is the refrain sung with hints of back-alley abortions.

The idea that Republicans will nominate justices that threaten women's reproductive choices has been repeated uncritically so often that voters start to believe it. But it's an argument that wilts under scrutiny.

Indeed, if you ask Democrats to name a progressive justice appointed by a Democratic president, you'll likely face blank stares. Today's court includes two Clinton nominees, but many legal scholars consider them less progressive than Justices David Souter and John Paul Stevens, both nominated by Republicans -- the former by George W. Bush's dad.

The Gore campaign invokes Roe v Wade at every opportunity, but fails to mention that the court issuing that decision was dominated by six Republican-nominated judges. The decision itself was written by Harry Blackmun, a Nixon appointee.

Any honest Democrat also would acknowledge that one of the strongest progressive forces on the Court over the last 50 years was William Brennan, another Republican (Eisenhower) nominee.

So should civil liberties advocates rally for Bush? Hardly. But it is worth noting that in presenting justices like Antonin Scalia and Clarence Thomas as legitimate examples of what progressives fear, Gore's boosters ignore that Supreme Court justices' voting records often differ tremendously from the ideology of the presidents who nominate them. Choosing presidents based on their likely Supreme Court nominees is a shaky proposition.

Remember also that the party controlling the Senate has the ultimate power to confirm or deny nominations. As a Senator, Gore voted to confirm Scalia, a justice he now touts as an example of why progressives must defeat Bush by voting for Gore and not for Ralph Nader.

Gore's own record should give pause to pro-choice voters. In the House of Representatives, Gore and Republican vice-presidential candidate Dick Cheney voted identically -- "pro-life" -- on 13 of 14 abortion-related issues during the six years they served together.

Gore's votes gained him an 84% approval rating from the National Right to Life League (NRLC.org). His votes changed substantially in the Senate, but still he voted for the Hyde Amendment, restricting access to abortion for poor women. More troubling, he contends his views on abortion have "never changed."

Despite these facts, organizations allegedly protecting the interests of pro-choice women have joined Gore's scare campaign. A new commercial by the National Abortion and Reproductive Rights Action League (view at NARAL.org) claims that Bush's goal is "ending legal abortion" and warns, "Before voting Nader, consider the risk."

If the risk NARAL refers to is the risk that most women in the U.S. could be without easy access to abortion, it's too late. According to the Alan Guttmacher Institute, 83 percent of U.S. counties have no abortion providers. In rural areas, the number climbs to 93 percent. Gore may be closer to NARAL positions than Bush is, but the "hero vs. villain" scenario is fraud.

While the abortion issue gets most coverage, citizens concerned with personal freedom should examine the courts' broader impact, particularly the ongoing erosion of Bill of Rights protections in the name of suppressing "terrorism," government-disfavored drugs, and even political dissent. Nominees of both major parties have disappointed Bill of Rights supporters on these issues in recent years.

Discussion of Supreme Court actions often overlooks the fact that the court traditionally has been a follower, not a leader, of public opinion and will likely continue in that role regardless of who is president. Given the overwhelming public support for Roe v Wade, I'd bet against Bush appointing a justice who would overturn that decision -- such an act would be self-inflicted sabotage for his career and party.

Appointments to the federal judiciary do deserve serious consideration when we choose our president, but too many Americans have strong opinions on the topic based on inadequate or false information.

Before citizens succumb to voting out of fear rather than conviction, we should consider one thought: how can we expect our elected officials to vote their conscience if we don't?

Jeff Milchen is the director of ReclaimDemocracy.org.

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