Political Faultlines: Five To Four

It’s summer time before a major presidential election year, and campaign season is in the air. What is so curious, I find, during such a time is that all of a sudden everything becomes the “most solemn duty of the President.” Protecting our borders, protecting our environment, protecting our citizens, and choosing Supreme Court justices.

While some of the things that crop up as the most solemn thing the President is responsible for ever, the one that has the potential for the longest term of effect is deciding who will sit in as a Supreme Court justice. This is, of course, because while we have the ability to vote in or out of office any yahoo we want in the legislative and executive branch, the Supremes, once put in place, are there to stay until they retire or die.

Considering that some of these guys insist on living for a long time and often times are pretty stubborn about retiring before they get to the point where they are meeting everyone for the first time over and over again, it is justifiable the public concern over who gets picked.

The argument over Supreme Court Justices has even resulted in a coded vernacular among conservative activists. Terms like “constructionist” judges, and slogans like “legislate from the bench” have been coined to allow presidential candidates to assure their base that whomever they pick will most definitely NOT agree with Roe v. Wade.

But in truth, the concept of judges legislating from the bench is exactly what social conservatives want. They want justices to essentially un-legislate legal abortions, so in truth, the only kind of legislating from the bench they seek to avoid is legislation that goes against their own views:

Ginsburg, who prides herself on her collegiality, has taken to reading her dissenting opinions aloud from the bench—a vigorous protest in the genteel world of the justices. In her dissent (also joined by the others) in the abortion case, she observed that in 2000 five justices rejected a Nebraska ban on partial-birth abortions that was nearly identical to the one the Court upheld this year. O’Connor was still on the Court and in the majority in the Nebraska case, so the only meaningful difference between then and now, as Ginsburg noted, is that the Court is “differently composed than it was when we last considered a restrictive abortion regulation.”

And that, ultimately, is the point. When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. Presidents pick justices to extend their legacies; by this standard, Bush chose wisely. The days when justices surprised the Presidents who appointed them are over—the last two purported surprises, Souter and Kennedy, were anything but. Souter’s record pegged him as a moderate; Kennedy was nominated because the more conservative Robert Bork was rejected by the Senate. All the subsequently appointed justices—Thomas, Ginsburg, Breyer, Roberts, and Alito—have turned out precisely as might have been expected by the Presidents who appointed them.

What we are seeing, then, is that long after we finally rid ourselves of the grossly incompetent and hard-headed Bush administration, his “legacy” will still be working its way through the Supreme Court like a virus that defies inoculation.

And what is this legacy? Take all the blinders off, and what we really see is a system that is bitterly divided along old political lines. In America as a whole, it is the ultra powerful conservative base that finds itself further and further away from the mainstream and yet enjoys power disproportionate to the will of the people (note, see here, here, and any poll that looks at American approval of Iraq). And in the case of the Supreme Court, a string of conservative victories (as pointed out in the above article from the New Yorker) that have all passed by a vote of five to four.

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