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Bush's plan to stack the Court
How can he be stopped?

September 9, 2005 | Page 11

WITH THE timely death of Supreme Court Chief Justice William Rehnquist and the resignation of Sandra Day O'Connor, George W. Bush will get the chance that he wants to leave a legacy--of a Supreme Court packed with conservatives. ELIZABETH SCHULTE reports.

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THE CONGRESSIONAL confirmation hearings scheduled to begin September 6 on the Bush administration's nomination of John Roberts for Supreme Court were postponed until after William Rehnquist's funeral.

Rehnquist's body may be buried--but his sick, conservative agenda will live on in George W. Bush's judicial nominees.

Despite the devastation of Hurricane Katrina a week earlier and a federal relief effort desperately in need of organizing, the Bush administration had nevertheless planned to quickly push ahead with congressional hearings on the Roberts nomination. Rehnquist's death delayed this, but gave Bush the opportunity to announce that he would nominate Roberts to take the job of chief justice.

The administration clearly doesn't want anything getting in its way of shaping the Supreme Court in its own image--conservative, anti-abortion and hostile to civil rights.

This isn't to say that Bush had a terrible time with the last court. They did, after all, vote him into office in 2000 with their 5-4 decision in Bush v. Gore, despite the disenfranchisement of African American voters in Florida.

By now, Roberts' conservative record in the Reagan and Bush Sr. administrations is well-known--he's opposed to Roe v. Wade, immigration and civil liberties. And he's only 50 years old. Since Supreme Court justices take office for life, he could be chief justice for a very long time.

While a few liberal Democrats postured in the lead-up to the nomination hearings that they would grill Roberts, for the most part, he will get a free ride into a lifelong job on the highest court in the land.

And now that Roberts is set to replace the arch-conservative Rehnquist--for whom Roberts clerked, by the way--the Democratic Party establishment view is that he deserves less scrutiny than before. "The fight is over the next one," Democratic consultant Nick Baldick told the Associated Press. "Roberts is taking the Rehnquist voting slot, and no one worried about him being much more conservative than Rehnquist."

Sandra Day O'Connor, who announced in July her plan to retire, has said that she will stay on until her replacement has been confirmed. Bush is reported to be considering his friend Attorney General Alberto Gonzales--the architect of the U.S. government's torture policies in Iraq's Abu Ghraib prison--and rabidly anti-abortion justice Priscilla Owen.

The truth of the matter is that the Democratic Party establishment was never prepared for a real battle against Roberts.

Neither were the national liberal organizations that say they speak for women and minorities. NARAL Pro-choice America was quick to back down on their controversial advertisement highlighting Roberts' support of the anti-abortion group Operation Rescue in a case concerning its right to picket and harass abortion clinics and their patients.

After decades of fundraising claiming that they would defend the Supreme Court from an anti-choice majority, groups like NARAL Pro-choice America have done precious little to mobilize against Roberts.

If the last few decades have been any indication, the next time we hear about "saving the Court" will be during the 2006 elections--when supporters of the right to choose are told that we have to take back Congress from the Republicans. Instead of mobilizing now, it's almost as if they'd prefer to wait until after more anti-choice judges are appointed--so they can point out the dangers of not voting Democratic in the next election.

These national women's organizations are clinging to a very thin hope if they believe that the Democrats are coming to the rescue--especially after party leaders like Howard Dean and Sen. Hillary Clinton are doing what they can to make the party, in their own words, "more inclusive," to those who oppose abortion. Leaving this fight up to the Democratic Party--and the groups that focus their activity around lobbying and writing letters to Democratic politicians--is a dead end.

It's a myth that the members of the Court are somehow "above" having opinions on political issues. For instance, it should be fair game--and assumed--for Roberts to be asked what he thinks about a woman's right to choose in congressional hearings.

But it is also a great myth that justices are immune from having these opinions changed, and ruling in favor of popular opinion.

Such was the case in 1973, when the Supreme Court ruled in favor of women's right to abortion in the case of Roe v. Wade. With a movement of thousands of men and women around the country fighting for women's liberation--with reproductive rights at its center--the court was forced to grant this important right.

The same lesson applies to the Court's 1972 ruling in Furman v. Georgia, under Chief Justice and Nixon appointee Warren Burger, which stated that the death penalty was "cruel and unusual punishment."

A court dominated with Bush appointees are as vulnerable as those dominated by Reagan and Nixon appointees before them--if activists build a movement large and loud enough to make our demands heard.

Dedicated to bigotry and intolerance

"HE WAS a man of character and dedication," George Bush said of Supreme Court Justice William Rehnquist, who died of cancer at the age of 80. A miserable character and a dedication to bigotry and reaction, that is.

Appointed to the Court by Nixon in 1971, Rehnquist had already proved his commitment to abolishing civil rights. As a law clerk for Supreme Court Justice Robert Jackson in the 1950s, Rehnquist drafted a brief arguing that the Jim Crow doctrine of "separate but equal" was "right and should be affirmed." "It's about time the Court faced the fact that white people in the South don't like colored people," wrote Rehnquist.

As a Republican Party poll watcher in the 1960s, Rehnquist headed up "Operation Eagle Eye," which harassed Blacks and Latinos trying to vote in south Phoenix, Ariz. He also spoke in public against a proposed local law barring racial discrimination in public accommodations and against integration of the Phoenix public schools.

After a stint as assistant attorney general in the Nixon Justice Department, Rehnquist was nominated to the Supreme Court in 1971.

Appointed by Nixon in an attempt to shift the Court to the right, Rehnquist tried to do just that. A staunch supporter of the death penalty, he took aim at the appeals available to prisoners on death row. "The existence of the death penalty in this country is virtually an illusion," he complained in a 1981 dissent. "[V]irtually nothing happens except endlessly drawn-out legal proceedings."

He dissented in favor of the racists in a 1983 case in which the Internal Revenue Service refused to grant Bob Jones University--which bans interracial dating--tax-exempt status. In Bush v. Gore in 2000, Rehnquist helped sway the Court to rule against a recount after the disenfranchisement of Black voters in Florida led to a narrow win by Bush Jr.

Rehnquist displayed a freakish obsession with power and ceremony in 1995 when he showed up for work wearing his now-signature four gold stripes on his robe. The flashy new look was inspired by the costume warn by the character Lord Chancellor, in a production of the Gilbert and Sullivan operetta Iolanthe that he'd seen.

If Rehnquist had any regrets during his long and mean-spirited career, it was that he didn't do enough--to eviscerate women's right to abortion, especially. He dissented in the historic 1973 Roe v. Wade decision, which gave the right to abortion protection under the constitutional right to privacy. In 1992, the Court reaffirmed Roe with its decision in Casey. Rehnquist again dissented.

What would be a fitting "memorial" to this miserable human being? Redoubling our efforts to oppose everything he stood for.

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