Nothing stirs greater terror among civil rights and women’s rights groups than the prospect of Bush making politically disastrous picks to the U.S. Supreme Court. During the presidential campaign, Jesse Jackson, NAACP President Kweisi Mfume, legions of black Democratic officials, the leaders of NOW and the Fund For a Feminist Majority constantly dangled the nightmare vision of Bush dumping more judges such as Clarence Thomas and William Rehnquist on the high court. They rightly warned that these judges could wreak colossal damage on civil rights, and civil liberties protections and fulfill the long cherished dream of ultra-rightists to topple Roe vs. Wade. Bush deepened their terror by endlessly mouthing the pet conservative catch phrase that liberal activist judges muddle social policy and by calling judicial hard-liners, Thomas and Antonin Scalia the judges that he likes best. Bush almost certainly will have a chance to make a handful of picks to the Court. Rehnquist is eighty. Justices Sandra Day O’Conner, and John Paul Stevens are in their 70s. And Ruth Bader Ginsberg has battled cancer. Supreme Court justices serve an average of fifteen years on the bench. Seven of the current nine justices were picked by conservative Republican presidents. Bush’s picks would make decisions that profoundly influence for good and bad, law and politics in America for the next decade. However, while Bush on the campaign trail pledged to pick more judges like Thomas and Scalia, the kind of judge he could and would pick may be far different.
Texas is the best example of this. The judges on the nine-member Texas Supreme Court are elected. Currently they are all Republicans. During Bush’s six years as Texas governor he made four appointments to the Texas court to fill the unexpired terms of four justices who resigned before the end of their terms. None of the four remotely fit the doctrinaire Thomas and Scalia image. They are moderate Republicans from varied ethnic and gender backgrounds. They are widely praised by legal scholars for their fairness and impartiality. During the past year the Texas court issued more than 100 rulings in a variety of liability, and civil liberties cases. In these cases, Bush’s appointees did not reflexively cast votes to savage civil liberties, and civil rights, totally ignore consumer protections, and give away the company store to big business.
Their relative judicial moderation was surprisingly evident on the crucial issue of abortion rights. While Bush thinks Roe vs. Wade is wrong and that abortion matters are states rights issues, he did not follow the ultra-right script of Reagan and Bush and make abortion the litmus test for appointing his judges. In a series of “Jane Doe” cases that challenged the state’s restrictive Parental Notification Laws for a minor seeking an abortion, three of Bush’s appointees voted to make abortion without parental consent easier to obtain. Texas Watch, a public watchdog group, which closely monitors the Texas’s Court decisions, credits Bush’s appointees with moving the court away from formula hostility to consumer rights and civil liberties.
While Bush’s Texas court appointees don’t fit the mold of a Thomas or Scalia, this does not mean that he won’t be sorely tempted to pick judges to the U.S. Supreme court whose avowed mission is to torpedo civil liberties, civil rights, and abortion. Bush will be under monumental pressure from ultra-right groups to reimpose the conservative litmus test on his picks. But Bush must also be mindful of the debacle that befell Bush Sr. when he picked Thomas to replace civil rights icon, Thurgood Marshall in 1991. It ignited a national firestorm of protest by civil rights and women’s groups.
During the Senate Judiciary Committee’s confirmation hearings, they stormed the Capitol and demanded that Thomas be rejected. Their protests stiffened the spines of Committee Democrats who subjected Thomas to the most intense, and grueling testimony in living memory. Although Thomas squeaked through by a 52 to 48 margin in the Senate, several notable Republicans broke party ranks to vote against his nomination.
Bush will be watched even closer than his father was by civil rights, women’s groups and Democrats. Any hint that he plans to nominate a Thomas clone would trigger a tidal wave of national rage, inflame Democrats, who now match the Republican numbers in the Senate, and permanently tar Bush as a petty ideologue more concerned about advancing a narrow conservative agenda than building bi-partisan political consensus. There’s no guarantee that he will show the same good sense as president that he did in Texas and pick non-agenda obsessed, moderate judges and not someone like Thomas to the high court. But the guarantee is that if he does pick another one like him, civil rights and women’s groups would and must stampede to the barricades to oppose him.
Earl Ofari Hutchinson is the author of The Disappearance of Black Leadership. email:[email protected] President of the National Alliance for Positive Action, email:[email protected] website: www.natalliance.org