Fear Escalates Over Bush High Court Picks

In a recent interview, the almost octogenarian Chief Justice William Rehnquist coyly hinted that he might retire now that President Bush has the Republican majority he needs in the Senate to get more conservative judges on the federal bench. Before and during the 2000 presidential election civil rights and women's groups repeatedly warned that Bush would pack the U.S. Supreme Court with more conservative judicial hard-liners such as Rehnquist, Clarence Thomas and Antonin Scalia. During the campaign he lavishly praised them as the judges with the right judicial stuff. While Rehnquist may be the first to go, illness or age could also force one or more of the other justices to step down in the next couple of years.

If Bush demands that his high court appointees adhere rigidly to the standard conservative litmus test, and they are confirmed, 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. A Bush appointee potentially could serve decades on the Supreme Court. (Rehnquist has served 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 if Bush tries to ram another Thomas or Scalia onto the court, there are political risks. While it takes only a simple majority in the Senate to confirm a judge, which Republicans now have, Democrats would almost certainly mount a filibuster against a Thomas or Scalia type. It would take 60 votes to cut it off and force a vote. A filibuster could breathe life back into a party battered and bruised by the Bush juggernaut and written off by many voters as a beaten and spent party. Even if the Democrats lost the fight, they would send a strong signal that they are still willing to fight hard for political and ideological principles.

Civil rights, civil liberties, and women's groups praised them for their fighting spunk in scuttling at least for the time being U.S. District Judge Charles Pickering, Sr. and Texas Supreme Court Justice Priscilla Owen, and delaying or denying confirmation hearings to some of Bush's other nominees. If Bush re-nominates them in the next Congress the Democrats will have yet another chance to rally the troops.

Bush also must be mindful of the debacle that befell Bush Senior when he picked Thomas to replace civil rights icon Thurgood Marshall in 1991. It ignited a national firestorm of protest by civil rights and women's groups. During the Senate Judiciary Committee's confirmation hearings, they 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. Although Thomas squeaked through by a narrow margin in the Senate, several notable Republicans broke party ranks to vote against his nomination.

Bush will be watched even more closely than his father was by civil rights, women's groups and many Democrats. Any hint that he plans to nominate a judicial partisan would trigger a tidal wave of national rage, inflame Democrats outside Congress, and permanently tar Bush as a petty ideologue more concerned about advancing a narrow conservative agenda than building bi-partisan political consensus.

Bush railed against Senate Democrats for polarizing and poisoning the atmosphere by holding his court nominees hostage. This is hyperbole mostly for public and political consumption. The majority of his appointees have been approved, and they have been approved with no public rancor or bitter political warfare. Moderate Republicans from varied ethnic and gender backgrounds, they were approved quietly and quickly because they did not fit the doctrinaire Thomas and Scalia image. Senate Democrats also remind Bush that in the past year they have confirmed more nominees than Republicans did in any single year of Clinton's second White House term when they controlled the Senate.

While many of Bush's federal court appointees don't fit the mold of a Thomas or Scalia, this does not mean that he won't be sorely tempted to pick judges whose avowed mission is to torpedo civil liberties, civil rights, and abortion. Bush will be under monumental pressure from hard right groups to impose their retrograde judicial philosophy conservative litmus test on his picks. There's no guarantee that he will show political good sense and pick non-agenda obsessed, moderate judges. But if he does pick another Thomas or Scalia, civil rights and women's groups will stampede to the barricades to oppose him. And hopefully, the top Democrats will be there with them.

Earl Ofari Hutchinson is an author and columnist. He is the author of "The Crisis in Black and Black" (Middle Passage Press).

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