Gloomily aware that Al Gore is not setting the campaign trail on fire,
Democrats are already invoking the specter of George W. Bush stocking the
U.S. Supreme Court with right-wing fanatics. Take People For the American
Way, a liberal pressure group. Last month, a report from this outfit
quavered that the Court is "just one or two new justices away from
curtailing or abolishing fundamental rights that millions of Americans take
for granted."
We hear this sort of refrain every four years. This time around, the
alarums are becoming especially shrill because the Democrats fear that with
little of substance separating the two major candidates, many possible Gore
voters will either stay at home or vote for Ralph Nader. What better way to
drag these strays back into the fold than to tell them that by 2002, the
Court could be stocked by Bush with two or three more justices like Antonin
Scalia or Clarence Thomas, eager to drag the country into the Middle Ages,
annul Roe v. Wade, and put the back-street abortionists back in business.
Now, talking of Roe v. Wade, which U.S .Supreme Court Justice, dissenting
to that opinion, wrote these bitterly sarcastic words?: "The Constitution of
the United States values the convenience, whim or caprice of the putative
mother more than the life or potential life of the fetus." Yes, this was
Byron "Whizzer" White, put on the Court by John F. Kennedy, a man of the
same conservative Democratic profile as Al Gore. White disappointed
liberals, the same way that David Souter, appointed by George Bush,
disappoints conservatives today.
A Democrat in the White House is no guarantee of a liberal on the Court.
Truman put up four, all of them awful. By contrast, Eisenhower nominated the
great liberal William Brennan, and Gerald Ford picked John Stevens, the
court's current liberal champion, and indeed, the only justice to rule
against two oil companies in one of the recent batches of Supreme Court
decisions. Nixon's nominee, Harold Blackmun, wrote the Roe v. Wade decision.
Twenty years later, Bush Sr.'s nominee, Souter, wrote the Planned Parenthood
v. Casey decision in 1992 reaffirming the "essential holding" of Roe v.
Wade, and arguing that "choice" was now installed in the national culture.
The Court echoed that view in its recent upholding of the Miranda rule.
And why had choice become thus installed; how was the "essential holding"
being reaffirmed? Through the activity of social movements, through the
political pressure of millions of people. The idea that our moral fabric,
the tenor of our culture, the texture of our freedoms derived from the U.S.
Supreme Court somehow depends on whom Gore or Bush may or may not nominate
is ludicrous. The U.S. Supreme Court, like all ruling state institutions,
bends in a benign direction only under the impulse of powerful social
movements.
Throughout the nation's history, the U.S. Supreme Court has generally been
a reactionary force, and it will no doubt be so whether Gore or Bush are
elected in November, or whether the Democrats or Republicans control
Congress. A partial exception was the Warren court, which had the
coincidence of two great justices, Brennan and William Douglas, and which
was prompted by the rise of the Civil Rights Movement and the political
assertion of black people trying to head off more drastic social explosions.
But let's remember the Warren Court was hardly progressive. It moved as it
did only in order to take the wind out of building social unrest and
revolts. The result was a consolidation of more power in a federal
government that was unflinchingly hostile to the interest of working people,
minorities and the environment.
Most progressives invest too much power in the Court, as if it were really
an Olympian check against the Executive or Congress. It's not. It wasn't the
U.S. Supreme Court that limited habeas corpus for people on Death Row, it
was Bill Clinton's Effective Death Penalty Act, fully supported by Vice
President Al Gore.
So, which is the more realistic political option: to vote for Al Gore,
despite his generally awful political positions, because he might pick a
judge who might turn out to be OK; or to look at Al Gore's recent record,
which is not a matter of conjecture.
Affirmative action? The National Partnership for Reinventing Government,
overseen by Gore, was denounced last year by the national legislative review
committee of Blacks in Government as having been "generally silent about
fairness and equality issues," and as having had "a devastating impact on
federal government workers, particularly racial minorities." First
Amendment? Gore was for censorship of the Internet, and fully supported his
wife Tipper's efforts to install censorship in the recording industry. War
powers? In the Clinton years, Gore has been the biggest hawk of all for
executive action, unfettered by Congress. Constitutional protections and the
Bill of Rights? Corporate power? Federal arrogance? The Clinton-Gore
administration has been ghastly on these issues.
Would liberal Democrats want a nominee picked by a man with this political
record? Actually, they couldn't care less. If they did care, they'd be out
campaigning for Ralph Nader. All they want to do is scare the pants off
liberals with the idea that Bush would finish off Roe v. Wade. It's a
substantively vacuous and bankrupt position, but it's all they've got left.
To find out more about Alexander Cockburn and read features by other
columnists and cartoonists, visit the Creators Syndicate web page at
www.creators.com.
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