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This time the sky really is falling

For over 30 years many of us on the left have been doing what has, no doubt, been at times a somewhat tiresome Chicken Little imitation over the threat posed by Republican appointments to the Supreme Court.  Well, guess what?  With the confirmation of Samuel Alito, this time the sky really is falling. 

No one doubts that Alito will move the Court’s already conservative center of gravity further to the right.  Even Senate Republicans, who spent most of the confirmation process pretending the nominee was as bland and unthreatening as a dish of tapioca pudding, always happily admitted this.  But much more is at play here.  

Alito, Scalia, Thomas and (almost certainly) Roberts really aren’t judicial conservatives at all, a descriptive that implies at least some element of judicial restraint; they’re movement conservatives -- political and cultural activists on a mission to radically remake American constitutional jurisprudence, not as an end in itself, but as part of a greater crusade to remake America itself in fundamental ways.

And you can forget the crap that sometimes justices surprise the presidents who appoint them

We hear it every time a new justice is appointed to the Supreme Court: “Judicial appointments are often unpredictable,” the pundits crow annoyingly.  “Once people get onto the Court, there’s just no telling where they’ll end up, in terms of how liberal or conservative a justice they’ll be.”

Don’t buy any of this: It’s an old wives’ tale, or an urban legend (if you prefer insulting urbanites instead of married females).  Supreme Court justices very rarely change their stripes after joining the Court.  True, there have been a few -- though only a few -- occasions where presidents have seriously misjudged an appointee, most famously Dwight Eisenhower, who later said of his appointment of Earl Warren as Chief Justice that it was “the biggest damn fool mistake I ever made.”  But Warren’s appointment occurred back in those innocent days of yore, before prospective Supreme Court justices were subjected to the kind of intense ideological vetting process that goes on today. There is no possibility that Bush has made a similar “mistake” -- none.

It could get worse

There is, however, one small consolation.  For the moment, the Fearsome Foursome are still one vote short of controlling a dependable majority on the Court.  That leaves Justice Kennedy, the surviving member of the Rehnquist Court’s famous two person bloc of “swing voters,” holding the balance of power.  Appointed by Ronald Reagan, Kennedy is extremely conservative, and is, to say the least, a depressingly thin reed for the progressive community to hang our hopes on.  Still, he should help to tone down the arch-conservatives, at least a little.  And there’s even a not diminutive possibility that concern over the radical nature of the ultraconservative bloc will drive Kennedy closer to the Court’s moderates.

But lest we forget, Justice Stevens is 85-years-old, and some other members of the Court have had health problems.  It is far from inconceivable that Bush will end up getting one, or to really cheer everyone up, more than one additional appointment.

Life under a reactionary-activist Supreme Court

If having Alito confirmed to sit on the Supreme Court means the sky is falling, having an Alito like replacement appointed for Stevens, or one of the other moderate justices, would constitute a full-fledged supernova of the sun (actually the sun’s too small for a full supernova, but you get the idea).  A solid majority of the justices of the United States Supreme Court would then be right wing ideological warriors, free to establish the law of the land however they like, without any need to compromise with the less extreme members of the Court.

We have already had a fair preview of where such a Court would take the nation and, as they say, it ain’t pretty; and while Roe v. Wade is extremely important (or at least used to be), it represents only the tiniest smidgeon of the cause for concern.  While there’s a smorgasbord of reasons why even the thought of a Supreme Court dominated by Alito-Scalia clones should give anyone to the left of Cotton Mather repetitive night sweats, the biggest one goes directly to the continued viability of liberal democracy itself.

Ultraconservative jurists, like Alito, take a very limited view of the power of Congress under the constitution to legislate in fields like environmental protection, workers’ rights and consumer protection.  At the same time, they take a very expansive interpretation of property rights, especially those of the corporate elite.  When taken together, these two theories would allow five ideologically committed judges to undo much of the social progress that has been made since the Great Depression.  And there would be virtually nothing Congress -- even a future Democratic Congress -- could do about it. 

As Thomas M. Keck established in his book, The Most Activist Supreme Court in History, even before Alito replaced so-called “moderate” Justice Sandra Day O’Connor, the Rehnquist Court had, in recent years, struck down as unconstitutional more federal statutes than occurred at any other time in the history of the Supreme Court; one commentator (I don’t remember who) went so far as to suggest that the Court, in recent years, has been treating Congress more like a troublesome circuit court than as a co-equal branch of the federal government.

And as I’ve discussed before, there is a distinctly partisan, pro-conservative and pro-Republican, quality to these decisions, especially in so far as they impact the political process itself.

At the same time, these far right justices tend to take a very narrow view of individual liberties, and a broad view of the government’s power to intrude into the lives of individual Americans.

Well-intentioned liberals who argue against opposing ultraconservative judicial nominations, like Alito, believing it to be bad politics, may discover that after enough Alitos take the bench and begin imposing their will by way of judicial decree, elective politics may not really matter as much anymore.         

Not one more Federalist Society style Supreme Court justice, not one 

If the Alito filibuster debacle -- and, yes, it was a debacle, even if a surprisingly inspirational one in terms of what the netroots were able to accomplish in an incredibly short time -- has taught us anything, it’s the immeasurable importance of early and effective planning, organization and networking.  We had the goods on Alito; we just failed to tell the story to the American people in a compelling way.  And assuming we’ve learned anything at all from the experience, the fight against the next Bush extremist Supreme Court nomination doesn’t begin when the selection is made, it begins now.    

And a good place to start is by reading (or rereading) a much talked about Salon blog entry by Peter Daou, posted back at about the time the effort to stop Alito was going up in smoke, discussing just how screwed up the progressive message machine is.  Daou emphasized the failure of the various components of what he called the triangle of the progressive movement, the netroots, the liberal media outlets and the political establishment to work together in a coordinated way to stop Alito.

I think he’s dead on target in identifying the problem, but perhaps (hopefully) a little over the top in the despondent tone he used in his concluding  thoughts, here,

Maybe the Democratic establishment wants it so, maybe they don't know better, but progressive bloggers and activists are starting to see the bitter reality of their isolation: the triangle is broken and they're on their own until further notice.

I understand Daou’s frustration (expressed, incidentally, before the impressive last minute anti-Alito push by the major blogs), but I find myself drawn more to Eric Alterman’s conclusion,

Democratic leaders, activists and the netroots are coming to an understanding.  A symbiosis has begun.  The only way to change the future makeup of the Supreme Court and Congress is by winning elections.  Through the effort to block Alito's confirmation, the Democrats are learning that by listening to their base, they can count on increased support to help them win elections.  At the other end, the netroots have gained respect for their Democratic leaders which will translate into more voting.

I don’t agree with everything Alterman is saying, but from what I’ve seen (from the outside looking in, mind you) I do think he’s right that a degree of optimism is warranted as to future networking opportunities between the netroots and the Democratic Party.  Getting 25 Senators to vote no on cloture, many of them quite reluctantly, was a major accomplishment for the netroots, in particular the major blogs.  Washington DC is listening.

But if Alterman is right that a symbiosis is beginning, I have a damn good place to put it to work.  Now, as in right now -- not tomorrow, not let’s do lunch sometime, but immediately -- a working committee should be established to prepare for any future Bush Supreme Court appointments.  (If there end up being no openings on the Court (praise the Lord!) then fine, the exercise will still be of value.)

Here’s who should be on the committee: Howard Dean, Harry Reid, Ted Kennedy, Patrick Leahy (several other senators), at least a half dozen leading liberal bloggers and representatives from progressive think tanks and advocacy groups. 

The committee would have two purposes: First, working to establish a widespread consensus among Democrats and other progressive activists that the appointment of any further extreme right wing justices to the Supreme Court is simply unacceptable, and that any attempt to do so will be fought aggressively, using every legal resource available, including filibuster.  And, second, to establish a political and media strategy for carrying this fight forward, involving coordinated action by all elements of the progressive coalition, ready to spring into action at the very first word of a likely vacancy on the Supreme Court.

The sky is falling.

A supernova may not be far behind.

Let’s start conducting ourselves accordingly.

This entry was posted by Steve on Tuesday, February 14th, 2006 at 12:12 pm and is filed under Comment. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.