The president was wise to temper his enthusiasm. The chance to replace a legendary liberal on the high court is a mixed blessing, even for a conservative chief executive. True, Justice Marshall was one of the principal architects of a judicial edifice that Republican presidents have been trying to dismantle for the past two decades. On the court, Marshall was a powerful voice and vote against the death penalty, against prayer in schools, for mandatory busing of schoolchildren, for greater rights for the criminally accused. He believed that freedom of speech, no matter how distasteful, was nearly absolute and he never met an affirmative-action program he didn’t like. By replacing Marshall with a conservative, Bush has an opportunity to complete a counterrevolution, to end one era on the Supreme Court and begin another.
But the change must be carefully calibrated. What if the court does not stop where it is - somewhere to the right of center, but still safely in the mainstream of popular mores and attitudes? Will Americans still be applauding (and voting GOP) if the court keeps on moving to the right - if it severely restricts abortions, abandons the rights of minorities and women, and gives the other branches of government license to do pretty much whatever they please, all under the mantle of “judicial restraint”?
Bush, the political pragmatist, knows the risks to himself and his party. According to White House aides, he had no interest in finding a rabid right-winger to fill Marshall’s seat. One obvious candidate was Judge Clarence Thomas of the U.S. Court of Appeals for the District of Columbia. Like Marshall, Thomas, 43, is an African-American. His race set up a Capitol irony: Bush, the avowed foe of quotas, trying to fill the “black seat” on the court. But his advisers were more worried that Thomas would be attacked for lack of experience (he has been on the bench for only 16 months). Others warned that the former head of the Equal Employment Opportunity Commission, who opposed most affirmative-action plans, would be branded as a turncoat by civil-rights groups. For his part, Marshall counseled the president that race should not be used as “an excuse for doing wrong. picking the wrong Negro and saying, ‘I’m picking him because he’s a Negro’.” Though the Republicans have largely written off blacks, the growing Hispanic population is a tempting target for GOP vote getters. Some aides believed there was a strong possibility of a Hispanic nominee, although they also warned of Bush’s penchant for surprise (box).
Whoever gets named will be grilled very hard on the subject of abortion. David Souter, Bush’s choice for the court last summer, was able to finesse his confirmation hearing largely because he had no paper trail. Democrats are determined that the next nominee will not be able to skate through so easily. Their aim is to drive a “wedge issue” right through the Republican Party on the eve of the 1992 elections. It is widely anticipated that the new Bush court will throw out Roe V. Wade, the court’s landmark 1973 decision giving women a constitutional right to abortion. Actually, the justices may not go that far, but at the very least they are likely to approve more abortion restrictions. A flat reversal of Roe could come a year from now - just as the Republicans prepare to renominate George Bush.
For the first time in recent memory, there could be a real and divisive floor fight over abortion at the Republican convention. Since 1976 the GOP platform has been strongly pro-life. But now pro-choice and pro-life lobbying groups are trying to line up single-issue delegates to champion their causes. “The abortion issue is the Republicans’ Molotov cocktail,” says Democratic pollster Harrison Hickman, who does surveys for the National Abortion Rights Action League. “I think it’s about ready to explode.”
If it does, the Republicans can forget their hope of “realignment,” of forging a permanent GOP majority. The GOP is stronger among younger voters (18 to 24) than among any other age group. But younger voters tend to be pro-choice. More fundamentally, they resent any government intrusion into their private lives. The judicial conservatives on the court are not libertarians. If anything, they are “statists” who defer to the will of popularly elected legislatures. If the federal and local governments begin legislating morality, young voters could turn to the Democrats.
The old cliche is that the justices follow the election returns. But history tells a different story. At three critical junctures over the past two centuries, the Supreme Court has gotten out of kilter with public opinion - and sparked a political backlash that profoundly remade society. In 1857 the Supreme Court’s infamous Dred Scott Decision, which ruled that slaves were mere chattel, helped propel the newly created Republican Party into the White House (and the nation into Civil War). In 1935 the “nine old men” on the high court threw out the core of the New Deal - and handed Franklin Roosevelt a perfect foil.
The court under Earl Warren was well ahead of its time when it outlawed segregated schools in 1954. The court’s ringing endorsements of individual rights and equality under the law helped forge a liberal consensus in the 1960s. But those decisions made the court a fat target for the nascent conservative movement. “Most of the things we were complaining about were Supreme Court decisions,” said Phyllis Schlafly, an early right-wing activist and abortion foe. As the conservative movement grew in the ’70s, and the GOP established a lock on the White House in the ’80s, Republican administrations pushed the judiciary to the right, choosing well over half of all federal judges.
The pendulum will swing again. One reason that the Constitution has survived for more than 200 years is that the Supreme Court has been able to reinterpret it, as Justice Oliver Wendell Holmes Jr. said, to meet “the felt necessities of the time.” A “multicultural” society - one resistant to the old melting-pot ideal - is sure to confront the Supreme Court with divisive questions about the rights of minority groups. The growing gap between rich and poor, the breakup of the traditional family and the capacity of science to extend and alter human life will further test the justices’ capacity for wisdom and fairness. America, then, will keep changing, and with it the Supreme Court. George Bush had reasons to be cautious last week which extended beyond temporal politics. Administrations come and go, their famous victories forgotten like so much swept-up confetti. It is the people Bush will leave behind on the Supreme Court who will be his most enduring legacy.
A black conservative federal judge. Civil-rights groups will oppose. Mentor: Sen. John Danforth of Missouri; one hero: Malcolm X.
A Mexican-American from San Antonio. Federal appeals judge since May. Notre Dame alum and an ex-Marine captain.
Controversial conservative appeals court judge from Texas. Opposes death-penalty delays. Good state GOP ties. Placed second to David Souther last time.
A Latino from the Rio Grande Valley, now a federal trial judge. Phi Beta Kappa at U. of Texas. Friend of George W. Bush, the president’s son.
Bush loves to surprise. Possible choices: Judges Ferdinand Fernandez of Los Angeles, Raul Gonzales of Texas and Laurence Silberman of D.C.
