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Thursday, Nov 26, 2009
So why is this train wreck going to happen anyway?
Two reasons:
One: The partisan compulsion to use political power to acquire more political power, especially the power attainable through a lifetime appointment in the face of a lingering 50/50 logjam, is simply irresistible.
Precisely because the nation remains so evenly divided in partisan and ideological terms -- and because most of the dominant demographic trends tend to augur well for progressives -- conservatives will leap at the chance to renew their lock on the Supreme Court for another few decades. A party or governing bloc needs the consent of the governed to acquire more power in Congress or in state governments; it takes just a stroke of the president's pen and the consent of the Senate to tip the scales of power at the Supreme Court. For the most political administration in American history, this is a no-brainer.
Once upon a time, using the political power of one's office to gather more power resulted in literally dozens of congressional investigations of the Clinton administration including, and I'm almost positive I didn't just make this up, a taxpayer-funded investigation into the White House Christmas card list. During the Bush administration, the use of Vice President Dick Cheney's official residence at the Naval Observatory for a Republican Party fundraiser, private briefings for top Republican donors by Bush Cabinet officials, and the simply astonishing use of the federal police authority of the Department of Homeland Security to intervene on behalf of the Texas Republicans in Tom DeLay's shameless mid-decade redistricting power grab, have thus far resulted in a couple of watery editorials. So don't expect much of an apology about the naked use of power to beget power from this administration.
Two: For the same reason Protestants still march through Catholic neighborhoods in Ireland: They will because they can, and because to do otherwise would acknowledge that the other side has a point.
Make no mistake about it, should this president have the chance to make a Supreme Court nomination in this term, top officials in his administration will not only tolerate the fight that ensues, they will delight in it. Part of this may reflect a basic difference in philosophy. If you accept the broad generalization that progressives see every public issue only through nuance and complexity and that conservatives distill everything into binary "right" or "wrong," Bush will see no alternative but to make as conservative a nomination as he can find, and to do so loudly and proudly.
In this view of the world, Bush's inauguration as president was unquestionably "right" -- no less an authority than the Supreme Court of the United States of America said so itself. And not just right, some suggest, but perhaps even divinely ordained. Against that kind of moral certitude, what difference should it make that more people voted for Gore? It will make no difference at all unless President Bush takes this opportunity to value democracy more than power.
The bottom line: There is a clear opportunity ahead to sidestep what otherwise promises to be a truly poisonous nomination fight. The first and by far the easiest is for all nine sitting justices simply to stick it out for another 18 months. No one denies that justices commonly stay on the court longer than they might otherwise to await election results they find personally amenable; this time, they could stay on the court to avert an otherwise needless and uniquely aggravated round of political bloodletting and to avoid deepening the rift opened by Bush vs. Gore.
Justice John Paul Stevens' dissent in that case famously lamented the effect that decision would have on the institution of the independent judiciary. "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear," Stevens wrote. "It is the Nation's confidence in the judge as an impartial guardian of the rule of law." Deciding to postpone retirement at this point, in spite of its obvious personal and political expedience, would provide a powerful counterexample.
The burden of this moment falls solely on each individual justice. From the perspective of simple politics, if a vacancy occurs Bush may have no practical choice but to coolly ignore these controversies and appoint exactly the kind of aggressive, movement conservative he would have appointed if he'd been elected in a landslide. In turn, Democrats will have no alternative but to fight that nomination like their political lives are at stake -- because in many ways, they are.
In other words, once a justice steps down, there will be nothing to stop the snowball of rhetoric and political attacks to follow. Senate Republicans themselves describe one of their strategies as the "nuclear option," a revolutionary change some of them are willing to make in the rules governing the Senate's role in judicial nominations. All that stands in the way of a bilateral exchange of political nukes are the same five justices who ended the Florida recount. Regardless of how one views the propriety of the decisions they made in Bush vs. Gore, the justices themselves can make a huge contribution towards resolving the lingering damage of that controversy if they take the high road now, and avoid turning the deeply divisive legacy of that case into one that would continue to threaten the authority and integrity of the Supreme Court long into the future.
