Battle Ahead Over Bush High Court Picks

Some conservatives squirmed when near octogenarian U.S. Supreme Court Chief Justice William Rehnquist hinted that he might retire now that Republicans control the Senate and Bush can appoint a reliable conservative to replace him. While Rehnquist may be the first to go, (he has served on the court for thirty years) illness or age could also force one or more of the other justices to step down within the next couple of years.

Conservatives fear that Bush might slip up as Bush, Sr. did when he nominated David Souter to the bench. Souter has bitterly disappointed them by not reflexively voting the hard line conservative line on issues such as abortion, affirmative action, prisoner rights, and the death penalty. But this is a false fear. Those on Bush, Jr.'s short list of high court nominees appear to be relatively dependable conservatives. Bush confidant and White House counsel Alberto R. Gonzalez is considered the odds on favorite to bag the first high court opening; although he has spoken a bit too favorably for some conservatives on affirmative action, he is a rock solid conservative on their other pet issues.

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

If Bush demands that his high court appointees adhere rigidly to the standard conservative litmus test, 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, since those on his short list are all relatively young. Long after Bush has left the White House, their decisions would profoundly influence, for good and bad, law and politics in America .

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 could mount a filibuster against their confirmation. 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. A confirmation fight will also force Bush, and incoming Republican Senate Majority leader Bill Frist to back up their claim that they aren't trying to stack the Supreme Court with conservative yes-men but will pick men and women of ethnically diverse backgrounds who will promote judicial fairness.

Bush also must be mindful of the debacle that befell his father when he picked Thomas to replace civil rights icon, Thurgood Marshall in 1991. That action 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.

Republicans hope that the nomination of Gonzalez or Washington D.C. attorney Miguel Estrada will dampen the fire of civil rights groups and appease Latino groups. But if civil rights groups perceive that Gonzalez or Estrada's avowed mission on the court is to torpedo civil liberties and civil rights protections, they still must wage the same battle against them that they fought against Thomas.

Bush lambasted Senate Democrats in the last Congress session for polarizing and poisoning the atmosphere by holding his federal court nominees hostage. This was hyperbole mostly for public and political consumption. The Bush appointees who were approved generated no public rancor or bitter political warfare because they did not fit the blatantly political Thomas and Scalia image. Those who were rejected, U.S. District Judge Charles Pickering and Texas Supreme Court Justice Priscilla Owens, were opposed simply because they carried too much ideological baggage.

Appointments to the Supreme Court are a high stakes political game, and Bush will be under monumental pressure from hard right groups to impose their blatantly partisan judicial philosophy conservative litmus test on his picks. If he caves in to their pressure, the confirmation hearings will trigger a tidal wave of national rage, inflame Democrats outside Congress, and permanently tar him as a petty ideologue concerned solely with pushing a narrow conservative agenda. On this one, the battle lines will be firmly drawn.

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

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