The London Review of Books will soon publish one of the best pieces I have read on the politics of the next Supreme Court appointments.
Bruce Ackerman basically takes a subtle, game-theoretic approach to thinking through the likely set of choices Bush might make and considers how Democrats and progressives should respond. Because of Bush’s likely opportunity to make multiple appointments, the calculus of appointment and opposition becomes very interesting.
This article will not be published for a couple more weeks, but I am going to post a couple of short excerpts here. (I will not italicize the excerpts to make them easier to read.)
Ackerman lays out the White House challenge:
***A series of openings will force George Bush, the Senate and the American people to confront a new set of choices. When the last vacancies arose during the 1980s and early 1990s, liberalism was still a dynamic force on the court. But the last liberal justices retired more than a decade ago. Nobody on the bench is interested in reviving the strong egalitarianism of the 1960s, when the Warren Court was in its heyday. The present judicial spectrum ranges from moderate liberals to radical rightists, and Bush will be aiming to nominate candidates who will push the court’s centre of gravity further to the right.
There are two very different kinds of conservative. The worldly statesman, distrustful of large visions and focused on the prudent management of concrete problems has long been familiar. But Bush has more often relied on neo-conservatives with a very different temperament. They throw caution to the winds, assault the accumulated wisdom of the age, and insist on sweeping changes despite resistant facts. Law is a conservative profession, but it is not immune to the neocon temptation. The question raised by the coming vacancies to the Supreme Court is whether American law will remain in conservative hands, or whether it will be captured by a neo-con vision of revolutionary change.
The issue is not liberalism v. conservatism, but conservatism v. neo-conservatism.
The coming struggle over the Supreme Court has been gathering momentum for almost twenty years: the nomination battles over Robert Bork in 1987 and Clarence Thomas in 1991 were harbingers. But times have changed since these bitter contests. Bork was a cutting-edge neo-conservative of the 1980s, but his successors may well go far beyond
him, striking down laws protecting workers and the environment, supporting the destruction of basic civil liberties in the war on terrorism, and engaging in a wholesale attack on the premises of 20th-century constitutionalism. Or then again, Bush may hesitate. Despite his professed admiration for neo-con jurists such as Antonin Scalia and Clarence Thomas, he may offer up genuine conservatives, such as Sandra Day O’Connor, who reject radical change as a matter of principle.***
Commentary on the choices Bush will have:
***Bush has three options when the next vacancy to the Supreme Court comes up: he can nominate a seasoned conservative, a stealth candidate or a plain-speaking neo-con.
The president has one fewer senator than Bill Clinton had: 55 Republicans in 2005, 56 Democrats in 1993. But his strategic position is the same. He doesn’t have the 60 votes needed to override a determined filibuster by the opposition, so nominating a neo-con will be risky.
Since no one can predict what will happen in Iraq, he may well come to regret a decision to precipitate another cycle of bitter partisan warfare on the home front.***
Arguing that Democratic opposition to a stealth candidate or neocon appointment as Bush’s first appointment to the bench is vital, Ackerman writes:
***As soon as Bork II ascends to the Supreme Court, neocons will be crowing about their famous victory. Just as Reagan’s success in appointing Scalia encouraged the nomination of the more extreme Bork, the ascent of Bork II will encourage the nomination of a more extreme Bork III. In any event, it is wrong to succumb to a short-term perspective.
The fate of the court depends on the success of progressives in convincing the country that the neo-con Constitution is wrong in principle. Once Senate Democrats concede that Bork II’s vision is acceptable, it will be very difficult for them to regain the initiative in future debates. The time for principled opposition
Ackerman, of course, is a liberal critic of Bush and his likely appointments — but his reasoning about the ‘game’ that will ensue between the left, right, and mushy middle over the next set of Supreme Court appointments should educate anyone anywhere on the political spectrum.
I recommend that you get the London Review piece when it appears.
— Steve Clemons