The Next Justice

Last night at dinner — celebrating Kate’s birthday with our friends John and Debbie — Bush’s impending Supreme Court nomination came up.

“How many emails have you gotten from the Democrats about Sandra Day O’Connor?” John asked.

Well, not hundreds. But a steady stream from MoveOn and other liberal groups. The messages complement the “progressive” protests that greeted the news that O’Connor was retiring and that Bush is finally getting his dreaded chance to pick a real right-winger for the court. MoveOn PAC, the explicitly partisan arm of the liberal interest group born here in Berkeley of software money, is calling on its supporters to hold house parties this weekend to talk up a campaign to convince Bush to do the right thing and pick a middle-of-the-road justice.

I don’t want to be dismissive of a noble effort. But I will be, anyway.

First: Just what are these action groups and protesters thinking? That they’re dealing with a bunch of people who can be reasoned with, whose consciences are open to appeals based on democracy’s finer points? If so, they’re even further out of touch than they look when they go in front of the cameras shrieking about Bush’s imminent destruction of the republic.

The people they’re dealing with are like, you know, the Emperor and Darth Vader from “Star Wars.” Your puny democratic principles. Just wait till the Death Star gets done with them. This crew thought next to nothing about committing us to a struggle in Iraq that they know casually intimate will last, gee, for another decade or more. So: appeals to reason and conscience? Not in this life, though one can hope they have a reckoning during their next turn on the wheel.

Second: The protests and house party ideas — the notion that this is a pragmatic approach, a way to jawbone the president and his ideologues toward the political center — are just kind of loony. Fact is, Bush will be exercising an executive prerogative, just the way almost every other president has done. There’s absolutely nothing in history or The Good Book of Common Decency that requires him to do what his political foes consider the right thing; or to care what they think, for that matter, unless they have the votes to make a difference.

It’s kind of disingenuous to pretend otherwise. Just how would it look to the Democrats/liberals if they had one of their own in the White House right now and the religious right was mounting a crusade to keep a Roe-friendly “out-of-the-mainstream” nominee off the court? They’d be heading to the barricades to defend the president’s prerogative, I imagine.

Someone named Ben Brandzel, under whose name today’s MoveOn PAC e-missive was sent out, points to O’Connor’s nomination and unanimous (99-0) confirmation in 1981 as “a great example of how this process is supposed to work.” Moderately. Reasonably. Everyone goes home happy. And you get a justice who respects abortion rights.

Except that’s not how it really happened in O’Connor’s case. She was one of four consecutive nominees who won confirmation with zero “nay” votes on the Senate floor: John Paul Stevens, O’Connor, and Anthony Kennedy all got unanimous approval, and so did Antonin Scalia, the arch-conservative.

The streak was broken with David Souter. He was confirmed 90-9, with the no votes coming from MoveOn-type senators (Kennedy, Kerry, Alan Cranston, Bill Bradley and others) who expressed concern Souter would vote to overturn Roe v. Wade. Instead, he’s turned out to be, along with O’Connor and Kennedy (seen as a Catholic conservative going in) what most would consider a MoveOn-friendly moderate. Citing O’Connor’s 99-0 vote as evidence of how the process of friendly moderation is supposed to work is simply misinterpreting the record.

What would seem more reasonable for the panic-mongers to do at this point … is to wait and see who gets nominated. Then, the shrieking can have a specific target and might actually prevent another Clarence Thomas from getting on the court.