As George W. Bush passes the 100-day mark, he faces an unusual problem for a new President: Time is already running out on his ambition-advertised during last year’s campaign-to make the Supreme Court more conservative.
Former Sen. John Ashcroft, R-Mo., is an able and accomplished man who won the respect of many Senate colleagues in both parties. But he is unfit to be Attorney General. The reason is that during an important debate on a sensitive matter, then-Sen. Ashcroft abused the power of his office by descending to demagoguery, dishonesty, and character assassination.
RAY SUAREZ: For more on what’s at stake for the Supreme Court this presidential campaign we turn to two congressional spokesmen for the Bush and Gore campaigns: Republican Asa Hutchinson of Arkansas and Democrat Barney Frank of Massachusetts. They are both on the House Judiciary Committee.
Joining them are two Supreme Court watchers: Stuart Taylor, legal affairs correspondent for National Journal and Newsweek, and Anthony Lewis, a columnist with The New York Times. Representative Hutchinson, this is one of the longest periods of the stable membership of the court in American history. These nine men and women have been there for six years with no changes.
What should voters be thinking about this fall, as they consider who should be the next president and how that may change the court?
REP. ASA HUTCHINSON: Well, I think first they have to realize how significantly it could change the court — in the last term, I think there were 70 decisions, one-third of those were a 5-4 decision on a whole host of issues, from partial birth abortion to the case involving the Boy Scouts — 5-4 decisions.
And so if the next president would appoint one, two or three, then it could be a significant change in the tilt, the balance of the court. Governor Bush has indicated that he does not have any litmus test for those; he wants to make sure that they are well qualified, reflect his general philosophy.
If you look at his record in Texas, his appointees represent all walks of life. 50 percent of them were women and minorities. And so I think that’s how he would approach appointees to the United States Supreme Court.
RAY SUAREZ: And Congressman Frank, let me move to you, what would you ask voters to keep in mind about the makeup of the Supreme Court and who the next president will be?
It’s no secret that the next President could alter the ideological balance on the Supreme Court. The Court is so closely divided that the next appointment or two could produce a shift either to the liberal or to the conservative side. What’s less widely appreciated is that the current makeup of the Court so closely mirrors the nation’s divisions, with those at the center often striking so delicate a balance, that a dramatic shift in either direction would be quite unsettling for the body politic. With the Justices split 5-4 on affirmative action, racial gerrymandering, church-state relations, and states’ rights, a one-vote switch could, for example, virtually wipe out governmental use of racial preferences–or ensconce them more firmly than ever before. Roe vs. Wade hangs by two votes. And the next President’s appointments (if any) could make the Court far more conservative–or more liberal–on gay rights, the "right to die," campaign finance restrictions, feminist causes, and other ideologically charged issues. But thoughtful liberals should hesitate to wish for a Court bent on sweeping away laws requiring that parents be notified when their children seek abortions, or junking the military’s restrictions on women in combat, or striking down the death penalty (again). And thoughtful conservatives should hesitate to wish for a majority bent on eradicating the racial preferences used by most elite universities (and other institutions), or reinstating prayer in public schools, or overruling Miranda vs. Arizona (as the current Court has been urged to do in a pending case). The reason is that popular government works best when Justices use their powers sparingly and seek to foster and inform rather than to pre-empt democratic debate on the great issues of the day, and when they respect their own precedents. Such restraint comes most naturally to Justices who can see merit in both liberal and conservative perspectives.
The Democratic spin is that the Republican Senate’s Oct. 5 party-line vote, 54-45, to reject Ronnie L. White’s nomination for a U.S. District Court seat in Missouri was tinged with racism. At the very least, as President Clinton put it, the vote adds "credence to the perceptions that they treat minority and women judicial nominees unfairly and unequally." The Republican spin is, not surprisingly, quite different. In the words of White’s main critic, Sen. John Ashcroft, R-Mo., White’s record as a Missouri Supreme Court judge is "pro-criminal and activist," and exudes "a serious bias against…the death penalty," even "a tremendous bent toward criminal activity." Indeed, said Sen.
It’s taking longer and longer–and getting harder and harder–to fill vacancies on the federal courts. Some new numbers tell part of the story: The average time for Senate action on judicial nominations rose from 38 days in 1977-78 (when both the presidency and the Senate majority were Democratic) to 144 days in 1987-88 (when a Republican President faced a Democratic Senate) and 201 days in 1997-98 (when a Democratic President faced a Republican Senate), according to a bipartisan group called Citizens for Independent Courts. The creeping partisan paralysis was illustrated on Sept. 21 by the strange spectacle of Senate Democrats filibustering one of President Clinton’s judicial nominees–Ted Stewart, a conservative Republican from Utah.
If you like you judges fair and impartial, and you favor the freedom of speech, then I nave a nasty little conundrum for you. It is presented by the sort of controversy- heretofore unusual, but likely to become more commonplace in the future-that unfolded recently in Georgia, which (like more than half lbs states) has some contested judicial elections. In late June, a lawyer arraigned Mark Merrit, running for a seal on the Georgia Court of Appeals Judge Gary Andrews, went on the attack with the first negative statewide television advertising campaign even seen in a Georgia judicial election.
Merrit’s 30-second ad assailed Judge Andrews for using "a technicality in 1991 to reverse me conviction of a man who had confessed to molesting his own four-year-old son. The ad stows Merritt saying: "People who commit aims against innocent children should be convicted and serve their entire sentences. Isn’t it time our judges protected us from criminals instead of protecting criminals from justice?"
The state Judicial Qualifications Commission denounced Merritt’s ad, in a June 28 advisory opinion, as violating Canon 7 of the slate’s Code of Judicial conduct, which is binding on all candidates in judicial elections. The commission-which reports to the state supreme court-noted that it "unfortunately" had no power to impose a prior restraint on speech. But if warned that any lawyer-candidate using an ad like Merrill’s could fee subjected to judicial discipline if he won and to state bar discipline if he lost.
The commission faulted me ad for "fail[ing] to disclose that the decision [written by Andrews… was by a 7-2 majority of its court; that cases, especially those on appeal arc frequently and properly decided on technical or procedural aspects of the law; and that the Supreme Court of Georgia refused to hear an appeal"
You may not have realized that the Supreme Court-even after a decade under Chief Justice William Rehnquist-is a liberal "judicial dictatorship" that "has centralized control over every moral, political, social, and economic issue in the country," as part of an "intellectual elite that believes the prevailing social order of middle-class America is deeply flawed, unjust, and irrational."
That’s what Patrick Buchanan has been telling Republican audiences as he campaigns for the presidential nomination. He’s also been asserting that the chief "beneficiaries of the Court’s protection" are "members of various minorities including criminals, atheists, homosexuals, flag burners, illegal immigrants (including terrorists), convicts, and pornographers."
And Republican true believers seem to lap it up, as did those assembled at the Heritage Foundation, in Washington, D.C., for the Jan. 29 Buchanan speech quoted above.
Not to be completely outdone in court-bashing, faltering front-runner Sen. Robert Dole (R-Kan.) declared in his Jan. 23 response to President Bill Clinton’s State of the Union address that "our liberal courts" are "[at] war with our values," so that we must (yet again!) "untie the hands of our police."
Who is he talking about? Sandra Day O’Connor?
Never mind that Republican presidents appointed nearly two-thirds of all 790 federal judges, including seven of the nine Supreme Court justices. Republican presidential aspirants are once again running against the courts, as they have done ever since Richard Nixon’s campaign in the 1968 election.
The thumbnail sketch that has taken hold in commentary about Justice Byron White over the years goes something like this: Started as a Kennedy Democrat when appointed to the Supreme Court in 1962, moved to the right, ended as a crusty Rehnquistian conservative.
The 75-year-old White’s announcement on Friday that he would retire at the end of the current Court term provides an occasion for revisionism
Crusty he is, with a vengeance. This is a man of whom it was said, when he was the nation’s best college football player 56 years ago, that he was fast enough to run around defenders, but mean enough to prefer running through them instead and blasting them out of the way with his forearms. A lot of lawyers who have been bullied from the bench by White’s coldly penetrating questions would say he hasn’t changed much. So would a lot of former law clerks who have tasted White’s el-bows while going up for rebounds. ("The basketball court’s the only time I’ve ever really see him get close to people," says one.)
Nor has White’s ideology changed much, if at all. He never was the kind of liberal that the Kennedy name has come to stand for. (Nor was JFK, for that matter.) And he is not really a full-dress Rehn-quistian conservative now, except on a bunch of high-profile issues that have come to dominate headlines about the Court over the past two decades.
White’s jurisprudence has been characterized by the independence of a self-made, small-town Coloradan who grew up poor; the hard, hands-on work of a man who is at his desk at 7 a.m.; a dogged, unflashy consistency that bespeaks fundamental integrity; and the judicial self-restraint of a man who told the Senate Judiciary Committee during his 15-minute confirmation hearing in 1962: "I feel the major instrument for changing the laws in this country is the Congress of the United States."
The fundamental problem with the Supreme Court appointment process is not its tendency to he hijacked by eleventh-hour El-legations of scandalous conduct.
Nor is it the unseemly, kangarocourt atmosphere that sometimes prevails at Senate confirmation hearings.
Nor is it that somebody leaked Professor Anita Hill’s allegations of sexual harassment against Judge (now Justice) Clarence Thomas to the press, along with the Judiciary Committee’s I initial, secret decision to dismiss her immensely troubling account without hearing her give it.
Nor is it that the resulting firestorm forced the Senate then to have her testify at a public hearing, which predictably degenerated into a Roman circus.
Nor is it that liberal interest groups, senators, and their staff scour the nation for dirt about conservative nominees. Nor that the White House and Republican senators conducted a cynical smear campaign against Hill. Nor that either Thomas or Hill (I know not which) is the victim of a monstrous lie.
Nor is it that the odds are at least 50-50 that we now have a rampant perjurer on the Supreme Court.
Those phenomena preoccupy the public mind after the Senate’s partisan food-fight over the sexual harassment issue.
But the fundamental problem is the Senate’s unwillingness to insist on the best and, in this era of divided government, on a frank compromise as to the political and judicial philosophies of Supreme Court nominees.
The problem is that most senators will give the president’s nominees the benefit of the doubt-not that some won’t-when the issue is not whether the nominee should go to jail, but whether he or she should go to the nation’s highest tribunal-for life. This has enabled the president to get away with making highly ideological, partisan nominations of conservative mediocrities.
The major problem, in short, is not the confirmation process but the nom¨inating process.
