A presidential election of Supreme importance

October 04, 2004|By Ellen Goodman

BOSTON - Could we turn our attention to the rough and tumble world of Supreme Court politics?

The court will open today just in time for its quadrennial appearance on the political stage. As the dignified justices file into the dignified chamber, there will be a rather undignified murmur from the professional court-watchers:

Aren't eight of the nine members on Medicare? Isn't John Paul Stevens 84? Didn't Chief Justice William H. Rehnquist just turn 80? How is Sandra Day O'Connor, a survivor of breast cancer? And Ruth Bader Ginsburg, who had colon cancer? Everybody feeling OK? Anybody ready to retire to a golf course in Arizona?

This assessment will be accompanied by a bevy of professional handicappers laying odds on how many picks the next president could get. The number-crunchers will remind us that we've gone 10 years without a new justice, the longest dry spell since 1823. The numerologists will say that appointments come in clumps - Richard M. Nixon got four in four years, Reagan/Bush got five in five years.

This fairly unseemly and sometimes ghoulish speculation is an outgrowth of the belief that the robes of the Supremes aren't just black, they are also red and blue.

The court may still be the most respected institution in the country. But the knock-down, drag-out nomination fights of the past - see Clarence Thomas - and the locked-in state of Supreme Court split decisions have all made the justices seem more partisan than impartial.

The court's reputation was hardly enhanced by its role in the 2000 election. After the court's 5-4 decision in favor of George W. Bush, the dissenting Justice Stevens identified the real loser this way: "It is the nation's confidence in the judge as an impartial guardian of the rule of law."

What makes the issue so central now are the sheer number of important decisions that are 5-4 or 6-3. An analysis done by the People for the American Way concluded that 100 Supreme Court precedents would be overturned with one or two more conservative justices.

In speeches, the Bush-Cheney team talks in atmospheric terms about "activist judges" and "strict principles." But on conservative talk shows and in rallies, people talk about overturning Roe vs. Wade and getting prayer in the schools, about eliminating affirmative action and turning back gay rights.

Conservatives get it. As a lobbyist for the Christian Coalition said, "If you ask people in this group their top priority, the first thing they would say is changing the U.S. Supreme Court." Activist Clint Bolick told a reporter, "This election could be a twofer - we win the White House and the Supreme Court."

What's at stake are not just social issues but environmental issues, workers' rights, voting rights and the constitutional basis of progressive government. As Ralph G. Neas of People for the American Way says, "What's really scary is if they get another Scalia or two, they'll continue to win over the next 40 years, whoever is president."

No, not every president gets the justice he picks. Think David H. Souter. But in 2000, the president identified those conjoined justices Antonin Scalia and Clarence Thomas as his models. Since then, many of his nominees to lower courts have out-Scalia-ed Justice Scalia.

Today, J. Leon Holmes, the former president of Arkansas Right to Life who wrote that "the wife is to subordinate herself to her husband," serves on the Arkansas District Court. As for William H. Pryor Jr., the Alabama attorney general who said that "God has chosen through his son Jesus Christ, this time and this place for all Christians ... to save our country and save our courts"? Mr. Bush was so fond of Mr. Pryor he sneaked him into a temporary appeals court slot while the Senate was in recess.

In presidential politics, we're voting for four more years. In the Supreme Court, we're voting for 40 years.

Today, the court will open with the traditional cry "Oyez, Oyez, Oyez." Maybe they should be saying, "Uh-oh."

Ellen Goodman is a columnist for The Boston Globe. Her column appears Mondays and Thursdays in The Sun.

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