It's The Judges, Stupid

The intellectual, legal and political composition of the federal judiciary is the most important issue at stake in the 2004 presidential election, because the next president will have the power to create many new judges in his own image and thus place his stamp on every aspect of public policy for the next three decades.

Any doubt about the crucial nature of the stakes should have been erased by last week's 7-2 Supreme Court decision Locke v. Davey. The court rejected an absurd and radical assault on separation of church and state by refusing to require the state of Washington to pay for the college training of ministers. The Bush administration had filed an amicus curiae brief arguing that Washington should be forced to extend its college scholarship program to ministers-in-training.

In an opinion all the more significant because it was written by the conservative Chief Justice William H. Renquist, the court noted that from "the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of `established' religions."

The 79-year-old Renquist's conservatism is, paradoxically, the very reason why Democratic candidates should be seizing on the judiciary as an issue. Progressives have generally worried about who President George W. Bush will appoint to replace 83-year-old John Paul Stevens--the most consistently liberal justice on the high court--when he retires.

There is ample reason for concern, in that Bush's father, the 41st president, appointed Clarence Thomas to the seat occupied until 1991 by the towering figure of Thurgood Marshall. What is even scarier, though, is the likelihood that Bush would replace Renquist (who will likely retire within four years) with someone much more conservative, more rigid and certainly more prone to religious fanaticism.

There is one obvious candidate already on the court--Antonin Scalia, buddy of Dick Cheney and a healthy ultra-conservative, still in his 60s, who has argued that the death penalty should be upheld because God has the power of life and death, government derives its power from God; ergo, government also has the right to kill.

And Scalia's seat might be taken by, say, Charles Pickering, whose anti-civil rights record is so stellar that Bush bypassed the Senate confirmation process during the Christmas congressional recess and made an interim executive appointment (hoping that a more conservative Senate might confirm him for real after the next election).

One thing is certain: unlike his more moderate Republican predecessors, Bush will not make the mistake of appointing ideologically unreliable judges like Stevens (appointed by Gerald Ford), Sandra Day O'Connor (Reagan's choice) and David Souter (Bush's father's mistake).

Right-wing Republicans don't hesitate to attack liberal judges, as Bush did when he denounced "activist judges" while endorsing a constitutional amendment to ban gay marriage. But Democrats have generally regarded the judiciary as a non-sexy nonstarter of an issue.

Their view is understandable, in view of Americans' widespread ignorance of the constitutional machinery of their government. According to polls conducted by the National Constitution Center, 40 percent don't even know that there are three branches of government. More teenagers could name Larry, Curly and Moe as the Three Stooges than "legislative, executive, judicial" as the three branches of government.

Americans of mainstream political views think about the judiciary only when it issues a highly controversial decision--outlawing school segregation, legalizing abortion or, last year in Lawrence v. Texas, overturning state sodomy laws. But right-wing extremists constantly think about remaking the courts and the election of progressively more right-wing Republican presidents has served them well since 1968.

In polls this year, Americans identify health care, education, the war in Iraq, the economy and unemployment as the top election issues. Democrats should drive home the point that the courts--in cases involving everything from the right of patients to sue managed care organizations to the USA PATRIOT Act's encroachment on civil liberties--will have a great deal to say about how all of these issues play out. If Bush is re-elected, he will surely pack the nation's highest court with more stooges.

Susan Jacoby is director of the Center for Inquiry-Metro New York and the author of "Freethinkers: A History of American Secularism," forthcoming in April from Metropolitan Books.

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