What Democrats Should Do About the Supreme Court

Nothing strikes more dread and panic in civil rights and civil liberties groups than the possibility that President Bush will pack the Supreme Court with more Clarence Thomas' and Antonin Scalia's. These are the two justices that he's repeatedly said are his favorites. But even if he hadn't singled them out for personal praise, two recent studies found that Bush's 200 appointments to federal appeals courts were far more conservative and far less diverse than were Nixon, Reagan or Bush Sr.'s picks. Bush has not appointed one black judge in 10 southern states. These states have a greater number of African Americans than any other region. But Supreme Court appointments are the highest of high stakes political games, and conservatives are determined to win it at all costs.

Even if Bush remembered his promise not to impose an abortion litmus test on his picks, he will be under monumental pressure from hard right groups to choose someone who will impose their blatantly partisan judicial philosophy on the high court. But almost certainly, he'll be as good as his word, and will pick a judge that looks and think like the judges that he's picked for the lower courts.

Though Republican Sen. Arlen Specter, the presumptive head of the Senate Judiciary Committee, initially talked tough about challenging Bush's court nominees, he quickly backpedaled when conservative groups roundly attacked him. With little or no resistance from the Judiciary Committee, the ball game will be decided in the Senate. Senate Republican leaders have long anticipated that Democrats will do everything they can to torpedo Bush's first court pick. While it takes only a simple majority in the Senate to confirm a judge, and the Republicans have more than enough votes for that, Democrats can mount a filibuster against the confirmation. It will take 60 votes to cut it off and force a vote. But Senate Republicans have figured out a way to bend and twist the rule to get Bush's picks through. In 2002, incoming GOP Senate Majority leader, Bill Frist demanded that the Senate change the old rule and end filibusters with a simple majority. The instant Bush declared victory, Frist again said he would push hard for the rule change.

Bush will do his part and lambaste Senate Democrats for polarizing, and poisoning the atmosphere by holding his Supreme Court pick hostage. He did that when Senate Democrats went after some of his more outrageous federal court nominees. Conservative groups will take up the battle cry, and accuse civil rights groups of promoting hatred and divisiveness, and Democrats of political obstructionism.

While Senate Republicans are prepared to bend and twist the rules to get their way, and Bush will go on the attack, Democrats shouldn't bend and twist with them. If Democrats don't succeed in stopping his high court pick, the battle would be a big step toward breathing life back into a party battered and bruised by Bush's election juggernaut and written off by many voters as a beaten and spent party. It 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 to back up his claim that he isn't trying to stack the Supreme Court with conservative yes-men and women but will pick men and women of diverse backgrounds who will promote some semblance of judicial fairness.

Bush also must be constantly reminded of the debacle that befell his father 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. Thomas was ultimately confirmed but it was by only the narrowest of margins. And even that might not have happened, if Thomas hadn't been black. That was enough to make some doubting senators and that included some Republicans hesitate in rejecting him for fear of being called bigots.

Bush might even be tempted to use the same tack by making a Latino, or another African American, or woman his first pick to dampen the fire of civil rights and women's groups, and appease Latino groups. That won't work this time. Last year, civil rights groups fought hard against his appeals court picks, Miguel Estrada and Janice Brown, and managed to scuttle their confirmations at least for the present.

Bush has made it amply clear that the high court is at the top of his list to remake law and public policy in the hard right image. His doctrinaire conservative picks to the lower courts bear witness to that. Civil rights groups are prepared to do whatever they can to stop him. Senate Democrats must do the same.


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