Boston, Mass.–From the podium, Democrats don’t spend too much time talking about the U.S. Supreme Court. Sure, Al Gore threw some barbs their way, but that is to be expected: After all, they stole the election from him.
But talking to delegates in the Fleet Center and listening to activists around the town, it is clear that control of the Supreme Court is a major motivating issue for the liberal base. Two questions arise this week in Boston regarding judges:
First, why are the Democrats keeping quiet on this topic when the nation is watching?
Second, why are the liberals so worried?
The latter question seems an easy one to the delegates. The Court, in their mind, is already controlled by “the far-right wing.”
How can someone use this expression to describe the Court that has found constitutional rights to partial-birth abortion and sodomy, while declaring that the First Amendment protects video-game kiddie porn but not the political dissent banned by McCain-Feingold?
Every delegate I spoke to cited Bush v. Gore as the worst ruling of this Court. Looking ahead, the only concrete fear they could cite regarding a Bush SCOTUS was the overturn of Roe v. Wade.
But how likely do we really think this is? To begin with, the right to abortion in Roe was invented by GOP-appointed Harry Blackmun. In Planned Parenthood v. Casey, the Court upheld Roe on the strength of Republican appointees Sandra Day O’Connor, Anthony Kennedy, John Paul Stevens, David Souter, and Harry Blackmun.
Should we expect this pattern of one Souter for every Scalia to continue? Bush’s openly flirting with appointing Alberto Gonzales to the high Court is the first sign he does not want Roe overturned. Gonzales played a central role in eviscerating Texas’s parental-notification law.
A second sign of Bush’s acceptance of Roe is his tireless work to ensure Sen. Arlen Specter (R., Pa.) would be the chairman of the Senate Judiciary Committee next year. If Bush had stayed out of the state in the home stretch, conservative Sen. Jon Kyl (R., Ariz.) would be in line to chair that panel. Instead, Bush declared he wanted Specter–who borked Bork and who believes Roe was rightly decided–to be chairman.
Further, even if Bush and Specter both wanted a conservative appointee to the high Court, why should we assume they would get him or her? The Democrats would filibuster Janice Rogers Brown’s nomination to the Supreme Court as much as they have her appellate-court nomination.
Finally, conservative judges aren’t really anything to be afraid of, even if they could get on the bench. After all, they are conservative. Liberal fears about John Ashcroft are mostly overblown and irrational, but they have some grounding in reality: Expanding federal law-enforcement powers could do serious damage to freedom.
But Antonin Scalia, Clarence Thomas, and William Rehnquist can’t do anything to you. The worst they’ve done, from a liberal perspective, is limit the reach of the interstate commerce clause. Liberal judges, meanwhile, have created laws that put you at risk of arrest if you pray at a high-school football game.
We now begin to see just why the Democrats don’t want to talk about this topic on the campaign trail and the convention podium. Thoughtful liberals aren’t afraid of what a conservative Court will do; no, they need a liberal court to advance their agenda.
The Left relies on the Court to push an agenda that no representative body ever would: abortion on demand, homosexual marriage, and banning public displays of faith. If they thought these were winning issues, they would push them as legislation, not through Court edict.
It’s noteworthy that the Democrats have chosen Kate Michelman, former honcho at NARAL, to head their Campaign to Save the Court. NARAL, of course, demands that Democrats who want its support affirm a constitutional right to partial-birth abortion and abortion on demand.
What’s this Michelman campaign about? Will it try to rally America around abortion on demand?
No, it’s about money. Of the single-issue ideology groups listed on OpenSecrets.org, which tracks campaign funding, the most generous group so far in 2004 is EMILY’s List, which has already given over $1.4 million to pro-choice Democratic women. That’s more than the NRA and Tom DeLay’s ARMPAC (the top two conservative groups) combined.
The other top givers include the Human Rights Campaign, and NARAL. In other words, the biggest cash-cow issues for the Left are abortion and homosexuality, the two issues on which they turn to the bench (rather than the people or their representatives) for almost all of their wins.
So the result of this dynamic is a party–and a movement–that desperately needs the courts, but is afraid to talk about them. That’s what we’re seeing in Boston.
–Timothy P. Carney is a reporter for the Evans-Novak Political Report.