(cross-posted at Deny My Freedom and Daily Kos)
In due time, all politcians fade away. A president can serve two elected terms. Senators and representatives serve until they get old and retire, lose, or make the profitable jump to the private sector. But a Supreme Court justice will have their decisions felt for years after they die or retire from the bench. Marbury v. Madison, a case decided in 1803, is arguably the most important precedent of all in our common law system – and it is almost as old as the Constitution itself. Justices like John Marshall and Earl Warren may be long gone, but the monumental effects that the courts they served on still reverberate today. Arguably, the fight for the Supreme Court – an ‘independent’, appointed position by the president – is what the most important battles are fought over.
And we have lost both of them under the Bush administration. In the long run, this may be our greatest failure.
It would be a downright lie to say that anyone on the left side of the political spectrum – the Democratic Party, the interest groups, the grassroots, or the blogosphere – did everything in our power to stop the nominations of John Roberts or Samuel Alito (remember, Harriet Miers was run off the road by conservatives). Discussion on filibustering Roberts was limited to a minority of the blogosphere; even most of us agreed that he was qualified, and there was not much of a record to judge him on to be adamantly against his nomination. For us, getting 22 votes against his nomination was a victory of sorts.
But Alito was a different story. Most Americans believed he should have been rejected if he said he would overturn Roe v. Wade. Public opinion was on our side at first…but on this nomination, the one which would replace Justice Sandra Day O’Connor, who had become a crucial swing vote over time, we got sorely outmaneuvered. Kid Oakland framed it very simply: put Alito to the Roberts test. In his nomination hearings, despite whatever one may truly believe about Roberts’ beliefs, he did state that Roe v. Wade was settled law during his confirmation hearings for the D.C. Circuit Court of Appeals. Alito refused to do so. It should have been obvious that Alito and his nomination hearing “coaches” would never allow him to say outright that Roe v. Wade should be overturned – but there was plenty to imply such a thing. Those weren’t the only grounds to oppose Alito on – there were plenty of other reasons to be against his nomination as well. However, the Bush White House and the GOP went on the offensive. Poll numbers became favorable, to the point where most Americans didn’t think he would be a vote against choice. John Kerry, in a decision that still mystifies me, chose to be the first Senate Democrat to support a filibuster – but he announced it while he was in Switzerland. Alito easily got cloture, and he became a Supreme Court justice the same day of Bush’s State of the Union address.
A couple of days ago, law professor Jonathan Turley did an excellent analysis on how we began seeing the rotten fruit of our failure come to light during Roberts’ and Alito’s first term on the bench:
With the end of the first term of the Roberts court, some liberals seemed to give a sigh of relief that the new conservative majority had not returned the nation to an antebellum legal system. But on closer inspection, the past term was no cause for hope, let alone celebration, for uneasy liberals, moderates or libertarians.
To the contrary, the only comfort these groups should take from the past term is that it will likely prove far better than the coming term when the court is poised to hear cases involving affirmative action, abortion, environmental law and other hot-button issues.
Despite hopeful accounts that John Roberts and Samuel Alito would prove mainstream jurists, they proved every bit as ideological in major cases as predicted. Indeed, Roberts and Alito had the highest agreement rate of the justices — 90.9% — according to a Georgetown University study.
Remember when Bush said that he would nominate judges in the mold of Justices Antonin Scalia and Clarence Thomas? Well, Bush outdid himself on that point – he nominated two judges who are clearly further to the right than even those two. This isn’t to say that Scalia and Thomas are the new ‘moderates’; indeed, Roberts and Scalia agreed 86% of the time, although Scalia was the tiebreaking vote in U.S. v. Gonzalez-Lopez, a case that allowed individuals to have the right to choose their attorney. It’s become clear that Roberts and Alito are not judges with ‘mainstream’ values. In the end, Turley writes, this is what our inability to articulate a strong opposition to these justices has gotten us:
These votes reveal a new vision of our society emerging from the new conservative base of the court with Roberts and Alito. It is a society with few checks on the government except when it comes to environmental protection, private property, affirmative action, or religious practices. It is the very transformation that many wanted to discuss in the confirmation hearings but were blocked by the refusal of the nominees to answer questions and the refusal of senators to insist on such answers.
Now, Roberts and Alito are speaking clearly and loudly — from the far right side of the court.
One might argue that so long as Justice Anthony Kennedy takes on a more proactive role now that he is the court’s sole ‘moderate’, there will not be a rollback of decades of progress. That is not something that I want to count on, though – just look at the ages of the justices. With the exception of Scalia, the rest of the conservative justices are relatively young, and the newly-appointed justices are the youngest – Roberts is 51; Alito is 55. The oldest, by far, is John Paul Stevens, a liberal justice who is 86 years old. Yes, we do need to win the presidency so that we can control these matters, but it’s imperative that we also fight the nominations of extremist judges as hard as possible. In his entire piece, Turley’s most apt point may be this:
This was no bait and switch. Neither Roberts nor Alito promised to be a moderate — they simply allowed others to suggest that they were moderates.
Nothing could be closer to the truth. We did not do our jobs in making sure the American people knew that John Roberts and Samuel Alito were going to be far-right activists on the Supreme Court. The effects of Bush’s policies can be dismantled once we take Congress and the presidency, but the long-lasting effect of egregious decisions such as Hudson v. Michigan, which greatly reduced the power of the Fourth Amendment, will be felt long after Bush, Roberts, and Alito are gone from the public eye.
