The feel, the smell, the taste of another presidential election is in the air. Yes! Why not? We’re about to fill a vacancy on the U.S. Supreme Court, and you know what that means, of course. It means somebody new will be taking a pew at the World’s Most Powerful Deliberative Body — which is the high court, not the Senate — and therefore:
The political activists are getting ready to stoke public feelings and sensations into flaming outrage over … we won’t be sure until the blogs and talk shows instruct us.
- The media are gearing up for daily body and brain scans of whoever the poor nominee turns out to be.
And it’s all very sad and depressing, as it was sad and depressing when George Bush and John Kerry went at each other. But that’s major league politics, at the center of which the members of the U.S. Supreme Court have positioned themselves by their willingness — in some cases their eagerness — to tell us lowly voters what to think about abortion, church-state relationships, affirmative action, gay rights, capital punishment and, most recently (as well as disgracefully), the rights of owners over their own property.
The U.S. Supreme Court has become so smug a body of little, albeit cultured, autocrats that we can’t just take for granted the civic spirit of a man or a woman recruited to their number. We have to go to war over the nominee’s bona fides.
Oh, brothers and sisters, it ain’t pretty, but that’s where we live now.
The public schools may assure their unwary charges that nothing special happened prior to, oh, the Clinton Era. The Supreme Court’s power grab is in a different category. It’s old. As college debaters from 1959-60 will join me in recalling, we traversed the same dreary ground as now, only with less foreboding about our constitutional system’s ability to respond.
On and on the court went, amending the Constitution by judicial fiat whenever the members decided old understandings of the document no longer sufficed and new ones were wanted. These new understandings the justices were happy to supply. Well, true, we hadn’t (SET ITAL) asked (END ITAL) them to do so. But that was no obstacle. They could see well enough how to cut through the restraints that older generations had tried to place on power.
Abortion was a human right? We needed no constitutional convention to decide that. The justices did the trick with fervor and eclat. And when dissenters cried out in protest, the court stayed on watch to make sure its masterpiece remained unsullied, like the Mona Lisa
A number of mostly theoretical checks to court power exist. My debate colleagues and I waded through them 45 years ago. Impeachment? Highly unlikely. Constitutional amendment? Too difficult, tedious — and political. “Pack” the membership? Not even FDR got by with it. Other, lesser alternatives fell quickly by the wayside. All that works, it appears, is the gradual replacement of unsatisfactory justices by the nomination and confirmation of satisfactory ones. Which is where we came in.
And which explains the rage and incivility that may soon overtake us as the Senate considers George W. Bush’s first nominee to the court. Conservatives and liberals alike understand the stakes. The eventual nominee not necessarily will but might take a modest view of the court’s qualifications for overhauling the Constitution whenever the mood strikes. Democrats generally support the court’s rough jurisprudence on abortion, gay rights, church-state relationships and capital punishment. Saves them the trouble of persuading the people. Permits them just to say, “The court says so … ” Conservatives, by contrast, argue for the people’s right to shape their own constitutional arrangements.
Therefore, it’s not, after all, Judicial Nomination Time. It’s Election Time. Get ready to hate. Get ready to distort and vituperate and throw around catch phrases like “ideologue” and “hard right.” If you enjoyed the last presidential election, you’ll just absolutely love and adore the coming Senate and media battle over … whomever.