It’s Put Up or Shut Up Time for Bush and the Democrats

Not 9/11 maybe, but the impending resignations from the US Supreme Court of Rehnquist and O’Connor strike another body blow to the travel industry. Will a single member of the political elites dare to leave the Homeland over the summer? It’s red alert for the politicians, opinion-formers, judicial lobbies, law school experts, public interest groups. People for the American Way are on 24/7 fedex duty, sending out bulletins and fundraisers. The Christians have gone to their action stations. The telly pundits are massaging their vocal chords. Jeffrey Toobin has ordered a Ferrari. Construction crews are throwing back up emergency broadcasting and relay stations in Martha’s Vineyard, Sag Harbor, the Poconos, Jackson Hole and other favored pundit summer spots.

Rehnquist and O’Connor have done both parties a big favor. For the Republicans it means a welcome change of subject from the foundering war in Iraq, the foundering war on Social Security, the foundering economy, the foundering empire. For the Democrats it’s a useful change from their joyless current slogan on Iraq, “We seek a wider war”, and a chance once again to grandstand on the issue of “choice” and turn their political fortunes over to NOW and NARAL.

And of course there is the shimmering prospect that Bush might nominate, and the Senate confirm, judges who have been hankering to overturn Roe v Wade. This would doom the Republicans to minority status for decades to come. It was O’Connor who saved the Republicans several times from their own madder impulses for self-destruction when, as in the Webster decision in 1989, she stopped the court from overturning Roe v Wade.

(In several other 5-4 decisions it was again O’Connor who preserved at least the patina of affirmative action; upheld the Clean Air Act; swung the court to the liberal side on several voting rights cases, on disability rights, immigration, and campaign finance.)

It’s the fearful prospect of the next Court finally overturning Roe v Wade that confronts the Republican commanders. It’s put up or shut up time. Bush has talked about “a culture of life”. He’s said his two favorite justices on the Court are Scalia and Thomas, both of whom yearn to toss Roe v Wade in the trashcan.

If Bush lives up to to his proclaimed principles, then he’ll probably nominate a zealot like J. Michael Luttig, now on the 4th Circuit Court of Appeals bench. Luttig has been vying with another zealot, J. Harvie Wilkinson, in the effort to establish hyper-conservative credentials. It was Wilkinson who blinked, as Luttig voted death for protected wolves and no rights for enemy combatants in US hands to have any form of judicial review.

If, on the other hand, Bush listens to his wife Laura, who has spoken up in defense of choice, or to any possible worries of his own about his daughters’ choices, he might opt for the current Attorney General, Alberto Gonzales, who has been prudent on Roe v Wade and affirmative action. The Christian ultras are already beating the drum against Gonzalez.

A political plus for Gonzalez would be the fact that he would be the first Hispanic on the Supreme Court, though Bush could nominate Emilio Garza of the Fifth Circuit, also Hispanic, but anti-choice. (For history buffs who ask, wasn’t Benjamin Cardozo, a famous liberal on the bench in the 1930s, Hispanic, the answer is no. Cardozo was a Portuguese Jew.)

For the Democrats it’s put up or shut up time, too. Earlier this year the Senate Democrats struck the ludicrous bargain whereby they accepted three of the worst possible Bush judicial nominees in return for preservation of the filibuster, which they then vowed they would almost never use. If you can’t use the filibuster against a monster like William Pryor (one of the three), who exactly will you use it against?

A determined Democratic stand, and an unflinching filibuster, would take us back to the summer of ’68 when the Republicans filibustered LBJ’s nominee for Chief Justice, Abe Fortas, and finally got him to resign from the Court altogether. Do the Democrats have that sort of fire in them? If they do (against all available evidence) O’Connor has helped them by pledging in her letter to Bush that her resignation won’t take effect till a new nominee is confirmed. This means the Republicans won’t able brandish the accusation that the Democrats are forcing gridlock and paralyzing the nation’s top judicial body.

The US Supreme Court has always been a conservative body, except for the years after Eisenhower made what he called his two great mistakes, nominating William Brennan and Earl Warren, thus giving us the Warren Court. So whatever the pick, the news will not be good, and as we have pointed out, it was the liberal justices who gave us two recent terrible decisions, on medical marijuana and eminent domain.

The sky is dark and there’s no silver lining, except one glimmer. We may be entering an era when states openly defy US Supreme Court decisions they don’t care for, and where popular opinion and state court rulings point the other way, as with medical marijuana in California and Oregon.

Can we look to the day when Arnold Schwarzenegger will try to recoup his waning political career by standing on the hospital steps of Cedar Sinai facing down Bush’s federal marshals trying to haul off young starlets as they seek to exercise a woman’s right to chose?




Jeffrey St. Clair is editor of CounterPunch. His new book is The Big Heat: Earth on the Brink co-written with Joshua Frank. He can be reached at: Alexander Cockburn’s Guillotined! and A Colossal Wreck are available from CounterPunch.