The Supreme Court Is at Stake on November 4th

We've got to give the Republicans credit: they have successfully diverted everyone's attention away from their plans for the United States Supreme Court. Almost forgotten in the wake of the GOP's seemingly endless smear attacks and fear mongering is the simple fact that if elected, John McCain and Sarah Palin will push our nation's highest court further and further to the right.

Why should we care? Why must we care? Because the preservation of our civil liberties, of our civil and human rights, depends on it.

Following George W. Bush's appointment of Chief Justice John Roberts and Justice Samuel Alito, the Supreme Court is now precariously balanced not between left and right, but between the mainstream center and the extreme right. There is nothing radical about Justices John Paul Stevens and David Souter, both Republican appointees, or the deliberate and moderate Justice Stephen Breyer. Even Justice Ruth Bader Ginsburg, the most classically liberal member of the present Court, is hardly a left-wing firebrand. The swing vote, Justice Anthony Kennedy, is a conservative Reagan appointee, albeit a jurist with respect for precedent and an apparent disinclination to promote the Republican social agenda.

In contrast, Chief Justice Roberts and Justices Alito, Antonin Scalia, and Clarence Thomas constitute an extreme conservative, not to say reactionary, phalanx on most of the Constitutional issues that have come before them and that the Court will confront in the future. The next President of the United States will most probably appoint several new justices, thereby dramatically affecting the character of the Court.

John McCain has made no secret of his intentions. He told Pastor Rick Warren at the Saddleback Church Forum on August 16th that he would never appoint jurists like Justices Ginsburg, Breyer, Souter and Stevens to the Court. In contrast, Barack Obama is certain to nominate moderate, mainstream justices who are in the tradition Justices Louis D. Brandeis, William Brennan, Potter Stewart, and Sandra Day O'Connor, as well as Justices Ginsburg, Breyer, Souter and Stevens.

McCain assured Pastor Warren that "as president of the United States, I will be a pro-life president and this presidency will have pro-life policies. That's my commitment -- that's my commitment to you." In a McCain administration, only the likes of Justices Scalia, Alito and Thomas, who would promise to eviscerate and strive to completely overturn Roe v. Wade, would even be considered for nomination to the Court. And if a Vice President Sarah Palin has any say in the matter, or if she ends up actually making the appointments, even a conservative jurist in the mold of Justice Kennedy is likely to be disqualified as insufficiently extreme.

Equally alarming to anyone concerned about our Constitutional rights should be the fact that if McCain wins, he will owe his election to his running mate's arch-conservative constituency, and he is certain to be captive to their demands. It is critical, therefore, for us to remind ourselves who Sarah Palin is and what she believes.

Governor Palin is a radical right-wing Republican whose social philosophy is rooted in her fundamentalist Christian religiosity. She opposes abortion in all cases except when the life of the mother is at risk; she promotes "abstinence-only" programs, rather than broader sex education, as the way to prevent pre-marital teen pregnancies; she thinks that "creationism," also known as "intelligent design," should be taught in public schools alongside evolution ("I am a proponent of teaching both," she said in a televised 2006 gubernatorial debate); according to her response on a questionnaire from the far-right Eagle Forum while she was running for governor of Alaska two years ago, she believes that parents should be able to opt-out their children from curricula, books, and classes that do not conform to their religious beliefs because "parents should have the ultimate control over what their children are taught;" as recently as August 2008, she said that she does not believe that global warming is "man-made;" she has described the proposed construction of a $30 billion Alaska pipeline as "God's will," and the Iraq war as "a task that is from God;" she opposes spousal benefits for state employees in same-sex relationships; she opposes stem-cell research; she has opposed measures to protect endangered species such as polar bears and beluga whales; she has opposed expanding hate-crime legislation in Alaska; and she believes that the phrase "under God," added to the Pledge of Allegiance in 1954, was "good enough for the founding fathers."

Do we want, can we afford, Supreme Court justices who espouse Sarah Palin's ideology?

Earlier this summer, former New York Mayor Ed Koch declared that:

"the country is safer in the hands of Barack Obama . . . . Protecting and defending the U.S. means more than defending us from foreign attacks. It includes defending the public with respect to their civil rights, civil liberties and other needs, e.g., national health insurance, the right of abortion, the continuation of Social Security, gay rights, other rights of privacy, fair progressive taxation and a host of other needs and rights."

We know beyond any shadow of a doubt that like the United States as a whole, the Supreme Court would be eminently safe in Barack Obama's and Joe Biden's hands. If, on the other hand, John McCain or, even worse, Sarah Palin, were to appoint the next several justices, their repressive, regressive world view would shape our nation's future for decades to come. This frightening possibility should be front and center in every voter's mind as he or she enters the voting booth on Tuesday.

Menachem Z. Rosensaft is a lawyer in New York City

Comments

[gloria1129]

Have I missed something, or do we still require confirmation of an appointment to SCOTUS by a majority vote in the Senate? If that is the case, isn't this issue in this particular election a diversion, at the best? A manipulation may be more to the point.

And this when, during the time that the Republicans had full control (President, Senate & House), there was no effort to overturn Roe v Wade. There was, however, full thrust to remove many of our constitutional rights, and that should be the priority today. BTW: both of these Senators voted Yea to reauthorize that Patriot Act.

I'm a pro-choice woman, but still must ask: Why the necessity to manipulate, when real issues should be decisive?

[retus]

WWJD? (What would Jefferson Do?)

George Bush"s stacking of the Supreme Court will go down as perhaps his most enduring legacy, especially if the balance of power shifts from the Jeffersonian view of the Constitution"s enduring relevance to the Republican view that it may be ignored, overruled at the whim of a President. To have this view supported by 4 out of 9 Justices should have alarm bells ringing. The Judicial Branch is supposed to be the check and balance on the Executive Branch. This time, the system has worked. What about next time? Or the time after that??

Check out: http://iplicensing.net/2008/06/13/wwjd/

That's my .02!

[bannorhill]

George Bush has not stacked the Supreme Court. For the first time in over 40 years the court has been balanced between liberal and conservative judges. Maybe now we can have Judges who read the Constitution and laws for what they say...not what the judges want them to say!

[darthdarcy]

I'll try this again the most watered down version I can muster to as Huffington post will allow it...

John McCain when asked about current Supreme Court Justices himself named those he approved of....

All of those of whom he approved as is record are members of the Federalist Society...

So and I am trying to be good here and not fully truthful and factual...

Those who McCain will nominate for the Supreme Court and other Federal Court appointments will come from the ranks of The Federalist Society...which is the source of the Unitary Executive Doctrine which I as an American disagree with without equivocation...

[bannorhill]

So what part of the following Federalist Society principals do you disagree with...

"the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

Do you disagree with "the state should preserve freedom"?
Or " the separation of governmental powers is central to our Constitution"?
Or is it "duty of the judiciary to say what the law is"?

I always thought the Constitution is a fine document just as it was written and amended.

[MizLiz]

To me, the fate of the Supreme Court is far more important than anything else. Justices are being appointed at ever younger ages, so that the president who nominated them will have his legacy live on for decades. It doesn't matter any more if the justice has many years of rulings for us to consider....only ideology counts. If McCain takes this election, the justices he will try to appoint will certainly outlive me, and will affect
the lives of my granddaughters in ways I can't even imagine.

[CheGuevara]

The problem is, then the Democrats get a chance to nominate someone, it's always some elderly person with a health problem and few years liable to be spent on the bench. The Republicans? They go young -- 45, 50 years old at the max, because they want their people to have as much enduring influence as possible. Which is why we're going to be stuck with Roberts and Scalito for dozens of years, and have already had Thomas and Scalia for far longer than we needed to. President Obama will need to nominate strong progressive judges, judges as young as possible, even as young as 35-40 years old. Who cares what the critics will say, we will own the Senate with a 59-60 vote majority and will be able to convince at least one Republican into going our way to break a filibuster. We can't make any headway unless one of the Fearsome Foursome on the right pass away, but we can hold the line as hard as possible by replacing Ginsburg, Breyer, Kennedy, Souter and Stevens with strong, young, bright justices that will ensure a progressive and fair American future.

[SeanGardner]

If Obama wins, I have every reason to believe that he will nominate a Latino and an Asian-American to the Supreme Court if he gets to nominate three justices.

[Doofus]

For some reason, among Demos, the fate of the Supreme Court is
usually something of a secondary issue. As the latest epistle from
James Dobson & Focus on the Family makes very clear, for the Repos
the Court & who goes on it is a primary issue. The fact is, of course, that
there are some 'senior' judges who would prefer to retire during a Demo
administration, don't you know, and can't wait too much longer.

Dobson's 'Letter from 2012' is really all about what 'horrors' will result
from liberal appointments to the Court, and can easily be read as a warning
about what will happen if a fresh crew of liberals is NOT appointed.

http://www.citizenlink.org/CLtopstories/A000008495.cfm

[LillianB]

Three little words: Roe vs. Wade.

This is not a secondary issue.

[MizLiz]

I printed out the full 16-page woe-is-me letter, and you know what? it all sounds pretty fine to me. Of course, for the religious right-wingers, they are going to find their power diminished, their bully pulpit gone, and their influence in congress melted away.

Dear God, it can't come too soon.

[GREGy]

I only hope the left wing extremists out to make the USA a socialist nightmare fall short of their goal.

[MizLiz]

LOL..."socialist" just means everything republicans get mad at...like paying their fair share of taxes.

[bannorhill]

What is a fair share?

1% paying 33% of the taxes?

[TrippleD99]

Again as I have posted other times. I wish someone, when writing about the Supreme Court, would mention some facts about what party has had control of the nominations. In 1992, 8 of the 9 Justices had been nominated by the Republican party. Currently, 7 of the 9 have been. Yet, if you listen to the Republican party, they would like you to think that the Democrats are responsible for the Court. Seems the Republicans cannot take responsibility for anything.

[CatoTheCensor]

Equally frightening, perhaps more, is the hijacking of the Federal Judiciary by the last three Republican Presidents. It's been insidious, brilliant, and very hard to watch.

Republicans have majorities on nearly every circuit court in the country.

DC Circuit: 7 Republican - 4 Democratic
1st Circuit: 3 Republican - 2 Democratic
2nd Circuit: 6 Republican - 6 Democratic
3rd Circuit: 6 Republican - 6 Democratic
4th Circuit: 7 Republican - 4 Democratic
5th Circuit: 13 Republican - 4 Democratic
6th Circuit: 10 Republican - 6 Democratic
7th Circuit: 8 Republican - 3 Democratic
8th Circuit: 9 Republican - 2 Democratic
9th Circuit: 11 Republican - 16 Democratic
10th Circuit: 8 Republican - 4 Democratic
11th Circuit: 7 Republican - 5 Democratic
Federal Circuit: 8 Republican - 4 Democratic

In other words, Republican circuit court judges currently outnumber Democratic judges 103-66. Over 58% of all federal judges were appointed by Republican presidents; nearly 37% were appointed by George W. Bush.

The majority of cases in this country don't make it as far as the Supreme Court. Keeping the Supreme Court ideologically balanced is insanely important, don't get me wrong, but we can't ignore the fact that the circuit courts are currently wildly out of whack, and another Republican President will do even more damage.

[kfdan]

The Federal government has become a liability to the American people at this point. We have had a very bad GOP/Bush power pool going on in Washington for the last 8 years that has virtually destroyed the Constitution. The Supreme Court upon giving Bush the Presidency debased itself. We do not need any more little, partisan minds on what has historically been a very esteemed body!

[WolfLady]

Even if McPalin tried to appoint Mussolini, Himmler and Idi Amin to the Supreme Court, no way a Democratic-controlled senate would confirm them.

~WolfLady~

[MizLiz]

Finally. Someone who gets it. Presidents come and go, but the presidential appointments to the supreme court? My God, they're around for decades and have the power to change our lives in ways we can't even imagine. I hate to think of McCain appointments. Can you imagine the litmus tests he'll apply?

[Kassandra]

I really do have to hand it to this SC, though for unanimously overturning that voter suppression bid in Ohio. I was amazed.

But, they have generally backed Bush and when they haven't, it was a 5-4 decision. That's too close for comfort for me. Mainstream, moderate justices will suit me fine as long as they remember what's in the Constitution. I've always considered myself a moderate, until Bush/Cheney came along with their fascist schemes for America.

So much damage to this country and the world in 8 short/long years. I think what we're seeing now is just the leading edge of the long term harms this ideology represents. Sorta like the Titanic only saw the tip of the iceberg before it ripped open the hull.

[AurigaRa]

yeah the dems have done such a wonderful job holding down the number of conservatives
on the Supreme Court,

They could have rejected Roberts and Alito but let them in.

I hate McCain and Palin but the dems have helped set it up for them to completely corrupt the court

[BBDisk]

It's totally unfair to paint McCain an extremist ... he's been the best friend the Democrats have had on the Republican side, with many if not most of them praising him until it came time to battle for the Presidency.

Conservatives really don't like him. As McCain's mom has said ... they will hold their noses and vote for Johnny. Why don't they like him?

Because he's a freakin' liberal Republican.

[Kerris]

He used to be. But he has sold his political soul to vie for the presidency. He has made promises to people who know how to make presidents keep their promises. The far right and fundamentalist wing have bought and paid for McCain. Palin is their insurance policy on the purchase.

McCain is their creature now. Not the man he was before.

[CrackerJacker]

Perhaps, but I would say that a campaign is often held up by every candidate who runs for office as a statement of intent. Regardless of whether they successfully win, regardless of whether their campaign is actually a lie based on running to the party base in order to win power, if an elected official wins on their campaign, it is held by the people who voted for them as a mandate for how they should conduct themselves post election. As I said, the campaign may well be just a campaign and not reflective of future conduct, but bearing in mind how often Senator McCain changes his mind("The media is my base" => "The Liberal Media Elite", his contradictory record on Bush policies vs. his voting record), there is always a chance. A scary chance.

[MajorKong]

Just because conservatives don't like him doesn't mean he's "liberal".

Please tell me what part of McCain's platform is liberal.