Supreme Court fight is over: no hope for the liberals On Politics Today

Jack W. Germond & Jules Witcover

July 01, 1991|By Jack W. Germond & Jules Witcover

Washington -- AMONG the many things that should not be taken very seriously these days is all the bluster by the liberal Democrats about how intensively they are going to scrutinize President Bush's nominee to succeed Thurgood Marshall on the Supreme Court. The fight is over, the liberals have been routed and the prospect for the next generation is a court far more conservative than any in our lifetimes.

What this means in terms of particular issues is not entirely clear. The court already has been showing a pronounced inclination to narrow the rights of defendants in criminal cases.

And there is probably already a majority on the court to reverse the 1973 Roe vs. Wade decision legalizing abortion once a case is presented that offers the right kind of opportunity to do so.

But it is also true that individual justices can surprise their sponsors as, for example, Byron White has done by being far more conservative than President John F. Kennedy probably expected.

If the liberals were going to affect the court, they should have avoided losing five out of the last six presidential elections -- and most particularly the last three. The only president they have elected since Lyndon B. Johnson was Jimmy Carter in 1976 and, ironically, he is the only recent president who never had an opportunity to appoint anyone to the Supreme Court.

The question of the direction of the court is so important to national politics you would think it would be given serious attention in presidential election campaigns. But that doesn't seem to be the case.

In the 1988 campaign, for example, the issue of whom the candidates might put on the court was raised only occasionally by activist women principally concerned with the abortion issue and older blacks whose own experiences had shown them how important the court can be to their lives.

The problem is that voters are reluctant to make what amount to hypothetical two-step decisions in voting for a presidential candidate. They won't choose one over the other because of the differences in what they might do in some situation -- that is, a vacancy on the court -- that has not yet arisen.

Indeed, that reluctance to look beyond immediate qualifications was never better demonstrated than in all the evidence that President Bush's choice of Dan Quayle for vice president didn't cost him at the polls although a majority of voters thought it was a serious mistake. In choosing a president, it appears that people don't want to concern themselves with what might happen down the road.

Now the liberals are saying they will not allow another "stealth candidate" to slip through the confirmation process without finding out where he or she stands on abortion, as was the case with David Souter. But they are kidding themselves. The woods are full of conservative candidates with both the credentials for the Supreme Court and the skill to make it through the confirmation process without spelling out their views on abortion or any other single issue likely to confront the court.

The president can make the liberals' tough talk even more hollow by nominating a black for the vacancy, even a conservative one like Clarence Thomas. The idea of the liberals raking a black nominee over the coals for the benefit of the television cameras is laughable on its face.

The fact is that the only kind of candidate likely to run into serious trouble might be another Robert Bork, meaning one with a long history of writing and speaking in detail on issues likely to confront the court. And presumably the Bush White House has learned that lesson from the Reagan White House's experience.

The instant conventional wisdom is that Bush will choose a clearly devoted conservative rather than another Souter. The theory is that the president will want to use the nomination to solidify his credentials with the right wing entering the 1992 campaign. But the fact is that all Bush needs to do is avoid choosing someone so moderate as to be a red flag to the conservatives, and that shouldn't be hard to do considering the makeup of the federal judiciary these days.

The direction of the court has made the liberals in Congress even more important to the balance of political power as a whole. But, for all their brave talks, those same liberals are essentially powerless when it comes to dealing with this nomination.

That ballgame is over.

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