[Mb-civic] Missing: A Media Focus on the Supreme Court
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Sat Sep 18 22:49:10 PDT 2004
Missing: A Media Focus on the Supreme Court September 18, 2004
By Norman Solomon
The big media themes about the 2004 presidential campaign have reveled in
vague rhetoric and flimsy controversies. But little attention has focused
on a matter of profound importance: Whoever wins the race for the White
House will be in a position to slant the direction of the U.S. Supreme
Court for decades to come.
Justices on the top court tend to stick around for a long time.
Seven of the current nine were there a dozen years ago. William Rehnquist,
who was elevated to chief justice by President Reagan, originally got to
the Supreme Court when President Nixon appointed him a third of a century
ago. The last four justices to retire had been on the high court for an
average of 28 years.
Vacancies are very likely during the next presidential term.
Rehnquist, 79, is expected to step down. So is Sandra Day O'Connor, 74, a
swing vote on abortion and other issues that divide the court in close
votes. Also apt to retire soon is 84-year-old John Paul Stevens, who
usually votes with the more liberal justices. "The names of possible Bush
or Kerry appointees already are circulating in legal circles," the
Pittsburgh Post-Gazette reported in August, "and there is virtually no
overlap between the lists."
There should be no doubt about the kind of Supreme Court nominee that
President Bush would want. "In general what he's going to look for is the
most conservative Court of Appeals judge out there who is young," says
David M. O'Brien, a professor of government who has written a book about
the Supreme Court. "Those are the top two priorities."
Bush has made clear his intention to select replacements akin to
hard-right Justices Antonin Scalia and Clarence Thomas. Writing in the
Washington Times on Sept. 14, conservative attorney Bruce Fein predicts
that "the winner of the impending presidential sweepstakes will likely
appoint from one to three new justices." He foresees that if Bush wins on
Election Day and the seats held by O'Connor and Stevens become vacant,
"constitutional decrees in pivotal areas concerning presidential war
powers, church-state relations, freedom of speech, the death penalty, the
powers of the police and prosecutors, racial, ethnic and gender
discrimination and private property will display a markedly more
Some political agendas benefit from the claim that the Supreme Court's
1973 abortion-rights decision, Roe v. Wade, is not in jeopardy. But as
Michael Dorf, a law professor at Columbia University, wrote this summer,
"three justices -- Rehnquist, Antonin Scalia, and Clarence Thomas --
remain committed to overturning Roe. Meanwhile, two of the Court's three
oldest members -- justices Stevens and O'Connor -- are part of the
six-justice majority for recognizing a constitutional right to abortion.
Should President Bush have the opportunity to name anti-Roe successors to
these two justices -- or to any two or more of the six justices who oppose
overturning Roe -- there is little reason to doubt that he would seize it.
The result would be a Supreme Court majority for eliminating the
constitutional right to abortion."
Though Bush and Kerry are inclined to understate the importance of
potential new Supreme Court picks as they try to attract swing voters,
Professor Dorf is unequivocal: "A Bush victory will greatly increase the
likelihood that Congress and the state legislatures will be able to ban
most abortions at some point in the next four years. In contrast, a Kerry
victory will almost surely preserve the status quo of legal abortion prior
to the third trimester of pregnancy."
Already, Bush's impacts on the judiciary have been appreciable.
Like the members of the Supreme Court, the federal judges on appeals and
district court benches are appointed for life -- and in less than four
years, Bush has chosen almost a quarter of all those judges nationwide.
Dahlia Lithwick, a legal analyst with Slate, notes that "Bush has already
had a chance to massively reshape the lower federal bench. He's now filled
200 seats" -- with judges who'll have far-reaching effects. "He has
certainly put a lot of people onto the federal bench who have sort of
litmus tests on issues like abortion, on issues like civil rights. And I
think we are going to see -- in the far future, but not today -- the
fallout of a massive, massive influx of quite conservative jurists who've
been put on the bench in the last four years."
As opponents of abortion rights, civil liberties, gay rights and other
such causes work to gain a second term for George W. Bush, they try not to
stir up a mass-media ruckus that might light a fire under progressives
about the future of the Supreme Court and the rest of the federal
judiciary. Likewise, those on the left who don't want to back Kerry even
in swing states are inclined to dodge, or fog over, what hangs in the
balance. Kerry is hardly a champion of a progressive legal system, but the
contrast between his centrist orientation and the right-wing extremism of
the Bush-Cheney regime should be obvious. It's too easy to opt for
imagined purity while others will predictably have to deal with very dire
"The popular constituency of the Bush people, a large part of it, is the
extremist fundamentalist religious sector in the country, which is huge,"
Noam Chomsky said in a recent interview with David Barsamian. "There is
nothing like it in any other industrial country. And they have to keep
throwing them red meat to keep them in line. While they're shafting them
in their economic and social policies, you've got to make them think
you're doing something for them. And throwing red meat to that
constituency is very dangerous for the world, because it means violence
and aggression, but also for the country, because it means harming civil
liberties in a serious way. The Kerry people don't have that constituency.
They would like to have it, but they're never going to appeal to it much.
They have to appeal somehow to working people, women, minorities, and
others, and that makes a difference."
Chomsky added: "These may not look like huge differences, but they
translate into quite big effects for the lives of people. Anyone who says
'I don't care if Bush gets elected' is basically telling poor and working
people in the country, 'I don't care if your lives are destroyed. I don't
care whether you are going to have a little money to help your disabled
mother. I just don't care, because from my elevated point of view I don't
see much difference between them.' That's a way of saying, 'Pay no
attention to me, because I don't care about you.' Apart from its being
wrong, it's a recipe for disaster if you're hoping to ever develop a
popular movement and a political alternative."
Norman Solomon is co-author, with Reese Erlich, of "Target Iraq: What the
News Media Didn't Tell You." His columns and other writings can be found
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