Losers still in legal denial

Theory: Democrats are off-base in arguing that President Bush should delay Supreme Court appointments because the court ruled for him in the election.

February 10, 2002|By Jonathan Turley | Jonathan Turley,SPECIAL TO THE SUN

A YEAR AFTER the presidential election, some liberal Democrats still appear to be moving slowly through the stages of loss first defined by psychiatrist Elizabeth Kubler-Ross: denial, anger, bargaining, depression and acceptance.

A recent proposal from University of Chicago Law Professor Abner Mikva would suggest that some Democrats remain mired somewhere between denial and bargaining.

Mikva put forward a theory that has the hearts of many die-hard Democrats racing with anticipation: President Bush should be barred from filling any vacancies to the Supreme Court during his current term.

Thinly cloaked in constitutional and historical arguments, Mikva insists that any Supreme Court appointments should be delayed until the next presidential election in three years. Such opportunistic arguments are enough to make even James Carville blush, but, for some it seems, hope springs that the Constitution might afford what the election denied.

For many Democrats, the period of denial after the loss of the presidential election was marked in court filings and pregnant chads.

Even before the Supreme Court's decision in Bush vs. Gore largely deciding the issue in favor of Bush, denial was turning to anger. Democrats struck out in all directions. Green Party candidate Ralph Nader was the target of a campaign of Democratic retribution ranging from the withdrawal of Democratic donors for his environmental causes to banishment from many Democratic offices in Congress.

With the president's popularity at a historic high, Mikva appears to be moving from denial to anger to bargaining. He grudgingly accepts that Bush is president, though in a Washington Post op-ed page article he emphasizes that Gore won the popular vote. This is suggested as somehow significant despite the fact that the popular vote margin was statistically razor thin; that previous presidents have been elected on the electoral but not the popular vote; and that, in our constitutional electoral system, popular vote is legally meaningless. Yet, this image of an election stolen creates a useful appearance of victimization for Mikva and others in advancing this proposal. It is not that we are trying to subvert the constitutional process, we have been injured and deserve recourse.

Otherwise, the proposal is nothing more than a raw partisan shutdown of the president's prerogative to fill Supreme Court vacancies.

However, the real motivation for this proposal lies elsewhere. Mikva notes that the court could easily have as many as three vacancies during Bush's term, and he asks menacingly, "What kind of person would President Bush nominate?" Clearly, not a person to Mikva's liking.

The solution for Mikva is to simply divvy up powers with Bush like hostile roommates locked into a multiyear lease: Bush can continue to wage war and enjoy the trappings of office, but the Supreme Court would be off-limits.

His reasons are many, but few withstand serious review. First, Mikva argues that nothing in the Constitution requires nine justices, and that historically there have been long periods of delay in the confirmation of nominees.

This, of course, ignores that modern delays in confirmation have been because of concern about an individual's qualifications, not some categorical denial of the right of a president to place qualified individuals on the court.

Mikva also argues that it would be unseemly to allow the president to add to a court that "itself made the final decision as to who should be president."

He again chooses to ignore that voters chose this president through our constitutional electoral system. In advancing this liberal mythology, he ignores studies that show that Bush would have prevailed even if Gore succeeded in forcing his recount. As it turns out, the people of Florida and the rest of the country made the "final decision as to who should be president." Mikva notes that "there is still unhappiness" about the court's decision, an empirical observation apparently based on his conversations with other unrequited Gore supporters.

He labels the current Supreme Court as an "activist" court that needs only a couple of new votes to reshape laws in an image that Mikva finds unacceptable. He apparently prefers his own image. For years, conservatives criticized Mikva as one of the most liberal members of Congress and later as one of the nation's most liberal judges while on the U.S. Circuit Court of Appeals for the District of Columbia. Long accused of continuing his legislative career from the bench after leaving Congress, Mikva's labeling of any court as "activist" is rather disorienting.

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