[Mb-civic]      Missing: A Media Focus on the Supreme Court

Michael Butler michael at michaelbutler.com
Sun Sep 19 13:27:36 PDT 2004

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    Missing: A Media Focus on the Supreme Court
    By Norman Solomon

     Friday 17 September 2004

     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

     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 conservative hue."

     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 consequences.

     "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
at normansolomon.com.



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