Terror Over Bush’s Supreme Court Picks May Not Be Justified


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:ehutchi344@aol.com President of the National Alliance for Positive  Action, email:ehutchinson@natalliance.org website: www.natalliance.org


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