Don’t look now, but the sky is falling. At least that’s what the liberal interest groups that have mobilized this week in preparation for the battle over Justice Sandra Day O’Connor’s replacement to the Supreme Court would have you believe. Within minutes of the announcement of O’Connor’s retirement, the dinosaurs of the Left took to the airwaves to attempt to frame the debate. Planned Parenthood cried that “women’s health and safety [are] on the line.” People for the American Way shrieked that our “very national identity hangs in the balance.” Kim Gandy, president of the National Organization for Women, declared “a state of emergency for women’s rights.” Nan Aron, of left wing Alliance for Justice, spelled out what was to come: “a fight that will shape our lives for decades.”
All of the breathless talk was evidence of just how far the Far Left have slipped. Last year, Moveon.org threw millions of billionaire financier George Soros’s dollars toward TV, radio, and Internet ad buys in the hopes of buying the White House, but instead cried in its collective chardonnay as President Bush retained his presidency by a wider margin than in 2000, a Republican Senate grew more Republican, and its candidate, John Kerry, became the butt of late-night jokes. The heyday of Bill Clinton’s first term, where Democrats, for a short time, controlled both houses of Congress and 1600 Pennsylvania is long behind them. In the balmy summer of Washington, D.C., it is instead the frigid winter of liberal discontent.
So what is left for the Left? The Court. More than any other time in our history, the gears of liberal social activism no longer turn beneath the dome of the United States Capitol, but have moved a few hundred yards across the street to the United States Supreme Court. Liberal groups like the ACLU, Planned Parenthood, and the National Abortion Federation, well aware that the electorate is not solidly (if at all) behind their agenda, have turned to the Courts to advance their mission. Every time the people of the country speak through their legislatures on the hot-button issues of the day–abortion, homosexual rights, affirmative action, you name it–the army of lawyers of the Left line up at the courthouse steps to put a stop to the will of the people. Thus, for instance, moments after George W. Bush put presidential pen to congressional paper in signing the federal ban on partial-birth abortion in 2003, three judges, acting on the requests of these three liberal interest groups, enjoined the act from ever becoming law. What took hundreds of legislators years to pass, three unelected judges stopped cold in minutes. The Courts–and especially the nine seats on the United States Supreme Court–are as critical to the liberal game plan as they have ever been. Unlike the conservative movement that seeks to limit the now pervasive influence of the Supreme Court in our daily lives, liberal activist groups need the Court. Their success in changing social norms, their access to bank accounts in the Hamptons and Hollywood, their very existence–all depend on their ability to control its makeup.
It should come as no surprise that this summer will be a liberal political jihad. It’s a fair bet that no matter who the president nominates to fill Justice O’Connor’s seat on the Court, the Left will cry foul. Short of a Ted Kennedy clone–and I wouldn’t hold your breath for such a nominee to be named–the Left will cry that the president has driven the Court off a right-wing cliff.
Nothing is more telling about the desperation of the Left in modern politics than their warm embrace of Justice O’Connor over the last few days. Senator Harry Reid declared that “Justice O’Connor has been a voice of reason and moderation on the court. It is vital that she be replaced by someone like her, someone who embodies the fundamental American values of freedom, equality and fairness.” The aforementioned senior senator from Massachusetts similarly remarked that “Justice O’Connor was a mainstream conservative. … I hope the president will select someone who meets the high standards that she set and that can bring the nation together as she did.” House Minority Leader Nancy Pelosi had a similar statement: “As the president nominates a successor, he has an opportunity to unify the country by seeking meaningful consultation with legislators of both parties and choosing a respected nominee in the manner of Sandra Day O’Connor.”
From all the hand-wringing of leading Democrats about the need for another Justice O’Connor, one might think that she was a solid vote for all of their causes. To some degree, there is some truth in that. She was a firm proponent of abortion rights with little limitation, affirmative action in education, and other favorite causes of the Left. But she also helped scale back the expansion of criminal rights of the Warren Court, reinstated real limitations on federal power, recognized, albeit unevenly, that States were entitled to protection from an overactive Congress, and was a pivotal vote in a decision that upheld the constitutionality of school vouchers, a pariah to the Left. In short, she was a far cry from a Justice Brennan or Thurgood Marshall, the former standard bearers for the Left. For Ted Kennedy and Harry Reid to be embracing O’Connor as the model of a perfect judge speaks volumes to how far they have slipped in the American political debate.
The reality, however, is that even a Justice O’Connor might be difficult to confirm these days. Despite their empty words of praise, leading Democrats in the Senate know that the best they can do is fight to the death on the president’s nominee, demonizing that person no matter how esteemed or qualified. Anyone short of Ted Kennedy himself might not appease desperate liberals. So be prepared for judicial Armageddon. It may be the Left’s last stand.
– Shannen W. Coffin is a partner in the Washington, D.C. law firm of Steptoe & Johnson. A former Department of Justice official, Coffin now practices constitutional and appellate litigation.