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High Court Real Target of GOP Rule Shenanigans

The right-wing furor over judicial nominations is a bald attempt to weaken the ability of Democrats to prevent a conservative takeover of the Supreme Court.
 
 
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At a recent White House ceremony President Bush again blasted the Senate Democrats for stonewalling his judicial picks. GOP Senate Majority leader Bill Frist quickly took the cue and demanded that the Senate dump the filibuster rule. It currently takes 60 votes to cut off a filibuster and force a vote on a hotly contested judicial nomination. Frist wants to change the rule and end filibusters with a simple majority. Republicans, who are the majority in the Senate, could then more easily beat back a filibuster by Democrats.

But Bush's obstructionism accusation against the Democrats is baseless. Senate Democrats blocked the nominations of Texas state Justice Priscilla Owen, U.S. District Judge Charles Pickering, and Washington D.C. attorney Miguel Estrada. There was good reason. They simply carried too much ideological baggage. Their retrograde voting records and opinions, their lack of candor in the case of Estrada, and the fact that Bush went to the barricades for them, was good cause to suspect that their true mission on the court would have been to torpedo civil liberties and civil rights protections.

Yet despite Bush's bluster, Owen, Pickering and Estrada were confirmation aberrations. Most of Bush's picks have won confirmation in the last two years, and Democrats voted near unanimously for them. They generated no public rancor or bitter political warfare because they were not blatantly political Clarence Thomas and Antonin Scalia judicial hitmen.

So what are Bush and the GOP really up to when they squawk about the rules? The answer is the Supreme Court. Near octogenarian U.S. Supreme Court Chief Justice William Rehnquist has dropped strong hints that he might retire now that Republicans control the Senate and Bush can appoint a reliable conservative to replace him. Though Rehnquist could be the first to go, illness or old age could also force one or more of the other justices to step down within the next couple of years. If Bush is re-elected he'll likely have even more chances to make appointments to the high court.

The big danger is that Bush can and will pack the U.S. Supreme Court with judges who are conservative judicial hard-liners like Rehnquist, Thomas and Scalia. Bush has lavishly praised them as the judges with the right judicial stuff.

Conservatives have little fear that Bush will slip up as Papa Bush did when he nominated David Souter to the bench. Souter has bitterly disappointed them by not toeing their line on abortion, affirmative action, prisoner rights, and the death penalty. But those on Bush's short list of high court nominees appear to be relatively dependable conservatives. Even though Bush confidant and White House counsel Alberto R. Gonzalez, who is considered a favorite to bag the first high court opening, has spoken a bit too favorably for some conservatives on affirmative action, he is a rock solid conservative on their other pet issues.

If, or more likely when, Bush attempts to shove another Scalia or Thomas onto the court, and stack the Supreme Court with more conservative ideological hacks, they could wreak colossal damage on civil rights and civil liberties protections, totally ignore consumer protections, give away the company store to big business and fulfill the long cherished dream of ultra-rightists to topple Roe vs. Wade. Bush appointees could serve decades on the Supreme Court. Those on his short list are all relatively young. Rehnquist has served on the court for thirty years. Their decisions would profoundly influence for good and bad, law and politics in America long after Bush has left the White House.

But White House conservative court packing will ignite a pitched political battle, and Bush more than anyone else remembers what happened with the Thomas nomination. During the Senate Judiciary Committee's confirmation hearings in 1991, civil rights, civil liberties, and women's groups stormed the Capitol and demanded that Thomas be rejected. Their protests stiffened the spines of Committee Democrats who subjected Thomas to the most intense, and grueling testimony in living memory. Even if the Democrats ultimately lost the confirmation war against Bush, they would send a strong signal that they are still willing to fight hard for political and ideological principles. A bruising partisan confirmation battle played out daily before the watchful eyes of voters and the press would also badly mock Bush's claim that he will pick men and women of ethnic diverse backgrounds for the high court who will promote judicial fairness.

Bush and Frist know that appointments to the Supreme Court are a high stakes political game. And they are determined to win it at all costs, even if it means bending and twisting the Senate rules to get their way. Let's hope the Democrats don't bend and twist with them.

Earl Ofari Hutchinson is an author and columnist. Visit his news and opinion website: TheHutchinsonReport.com He is the author of "The Crisis in Black and Black" (Middle Passage Press).