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Chief Justice William Rehnquist is battling thyroid cancer. Three of his colleagues on the Supreme Court are over seventy. There is no doubt, this presidential term, as to whether George W. Bush will have the chance to name justices to the Court.
The only questions worth asking now are who, how, and how many.
“Moral Values,” Filibusters, and the Fate of Roe v. Wade
The most obviously pressing question, given the possible chief justice vacancy, is who President Bush’s nominees will be. During the 2000 presidential campaign, in a telling comment, Bush named Antonin Scalia and Clarence Thomas as the Supreme Court justices he most admired. While Thomas would be an unlikely choice for chief justice — he’s not an intellectual leader, to put it mildly — many believe Scalia is the man to beat for the job.
There would be no better way for Bush to acknowledge the “moral values” vote – that blinkered segment of the electorate that, the polls say, gave him the presidency – than to nominate Scalia to the post. An anti-abortion, anti-gay-rights, pro-school prayer Catholic, Scalia has precisely the record that Bush’s red-state constituents want.
Which brings us to the question of how. Scalia is not a moderate conservative, or even a disagreeable but tolerable conservative; he is an extremist. Given the power of the chief justice to shape the Court’s decision-making process, Scalia’s nomination would be vigorously opposed.
The Democrats in the Senate would no doubt filibuster to block a vote on the nomination, as they did with unacceptable judicial nominees during Bush’s first term. But Republicans, who now have a majority of fifty-five members in the Senate, might seek to change Senate rules to allow them break such a filibuster and allow a confirmation vote to proceed. If this last check on conservative extremism were to give way, a multitude of ideologues could be set loose on the courts.
And so finally to the depressing question of how many justices Bush will appoint. This one is hard to predict, but it is perhaps the most crucial of all. The difference between an extremist minority – for example, Rehnquist, Thomas and Scalia — and an extremist majority is just a couple of seats. If President Bush appoints three or even four new justices, as many believe likely, he could radically change the course of the law.
As paleo-conservative Patrick Buchanan just announced, triumphantly: “The last best chance to overturn Roe vs. Wade is at hand.”
What to Expect from the Scalia Court
While Roe v. Wade is the most prominent target of the Republic majority, it is not the only precedent at risk. If, in four years, a true Scalia Court exists, a number of important rulings might well be overturned.
A glance at cases in which Justices Scalia and Thomas have dissented offers a preview of what to expect. The subjects of their outrage range from affirmative action – stigmatized as racial discrimination – to campaign finance laws, environmental protection regulations, and gun restrictions, among others. They have tried to restrict the rights of certain groups — sodomizing adults, suspected criminals, women who need abortions, prisoners, the poor, religious dissenters, detainees on Guantanamo, to name a few – and enlarge the privileges of others.
What is the worst that would happen during the tenure of the Scalia Court? The wall between church and state would crumble, if not collapse. Cattle, mining, coal and timber interests would trump environmental concerns. Gays and lesbians would be forced back into the closet. Innocent defendants would face criminal incarceration or long-term detention as due process rights would be eliminated. Women would face death or permanent injury by getting back-alley abortions. No one would have the right to remain silent.
And talk of “moral values” aside, the death penalty would get a big boost from the Scalia Court. In Atkins v. Virginia, for example, the landmark death penalty case decided in 2002, Justices Thomas, Scalia, and Rehnquist agreed that mentally retarded adults should not be protected from execution.
Raise Your Glass
So we are back to how: how to stop this from happening. Bush has won the election, but it is the battles that will be fought over the next four years that will determine the character of the Court.
Hang tough, Senate Democrats, and remember these three essential steps: save the filibuster, block the judicial extremists, and toast the health of the remaining Supreme Court moderates!
JOANNE MARINER is a FindLaw columnist, CounterPunch contributor and human rights attorney in New York.