Third Party & Independents Archives

Supreme Court Propaganda Battle On the Horizon

An ugly fight is coming. Conservatives have responded to the liberal public relations challenge and hired a propaganda squad to defend whomever is Bush’s first nominee to the Supreme Court. The Supreme Court is an incredibly important institution, and decisions about the Court’s makeup are among the most important ones a president will make. Yet, the Democrats chosen tactic of filibustering judicial nominees will likely make the next fight the ugliest ever, and both sides know it.

When President Bush chooses his first Supreme Court nominee, the propaganda battle will begin. The measure of opposition will not be based on the competence of the judge, but the extent to which he/she is willing to support the liberal policy preferences on issues like abortion, war on terror and affirmative action (I generally agree with the liberal position on the war on terror issues, and disagree with them on affirmative action and abortion). Otherwise, the nominee will face the same opposition that qualified jurists like Miguel Estrada faced in Bush's last term - a filibuster that is not meant to stimulate debate, but is intended to obstruct.

I can see several outcomes to this ugly fight: (1) the appointment of a completely mediocre jurist who has never taken a novel or interesting position in their whole lives- there is one justice on the Court who fits that description already; (2) the victory of the Bush nominee, but at the cost of a prolonged immobilization of the Senate similar to the fight to stop the filibuster against the Civil Rights Act of 1964; (3) a change in the Senate rules, getting rid of the filibuster. None of these are desirable alternatives.

During the early 1990's, the Republicans and Bill Clinton gave an example of how such an ugly fight could be avoided. In 1993, most Republicans supported Justice Ruth Bader Ginsberg and not only allowed her an up or down vote but even voted for her, so that her margin of confirmation was 96-3. They did this despite Ginsburg having spent her career as an admitted leftist, including being a national director in the ACLU’s Women’s Rights Project. Yet, Ginsburg had also distinguished herself as a Circuit Court judge, and this carried enough weight to override ideological opposition with all but three Republicans. If Bush nominates a similarly qualified conservative Circuit Court judge - like Judge John Roberts, Judge James Wilkinson or Judge J. Michael Luttig- I can only hope the Democrats will hold back their attack machine and at least give the person a vote on his or her merits. Maybe they will even be able to put aside their ideology and vote for the candidate! Of course, this is highly unlikely.

On the other side of the political battle, Bush and his people should try to reach out to Democrats for short lists of quality conservative jurists (not mediocre mushy-middle ones) that would be acceptable- like Clinton did when working with Orin Hatch. Bush should make this attempt publicly and put the names of candidates like Roberts, Wilkinson and Luttig out there- to show the range of qualified candidates he is willing to nominate. In the very least, this approach would show the uncompromising nature of his opposition. Realistically, I do not see either side taking such an approach. The money is already coming in, the propaganda peddlers are already hired, and the fight is going to be ugly.

Posted by Misha Tseytlin at January 31, 2005 10:22 PM