Progressives shouldn’t filibuster Bush’s court pick

Ideological groups on both the left and the right are whipping their troops into a frenzy over the selection and confirmation of the next member of the U.S. Supreme Court, filling the vacancy created by the retirement of Associate Justice Sandra Day O’Connor. Abortion groups on both sides are particularly strident on the issue. The choice belongs to President George W. Bush, subject to confirmation by the U.S. Senate. Conservatives are urging the president to appoint a strong conservative, and Senate Democrats are threatening a filibuster if he does. The showdown could produce far-reaching consequences that far exceed the relevancy of the selection.

Although a strong proponent of a woman’s unfettered right to choose whether to terminate her pregnancy, the Oracle believes that utilizing a filibuster to try to block confirmation of a perceived anti-abortion (or otherwise too conservative) nominee is unwise and may cost progressives even more in the long run.

To begin with, filibusters and the super-majority requirement to end them are fundamentally bad for democracy. The ability of a numerical minority to thwart the will of a numerical majority has long been a tool of the privileged classes to thwart populist initiatives and maintain the status quo. Super-majority requirements to pass needed increases in school taxes are just one example. Historically the filibuster was most utilized by southern Democrats (remember them?) resisting civil rights legislation (as well as President Lyndon Johnson’s eleventh-hour attempt to beat President-elect Richard Nixon to the punch in replacing Chief Justice Earl Warren). The filibuster is ideologically neutral, and can be used just as effectively to thwart progressive reforms when progressives regain control. Whoever relies on these tactics forfeits the moral high ground in the eyes of the public, because most Americans recognize the fundamental unfairness of minority rule and denying an up-or-down vote. Progressives would suffer significant harm to their credibility by utilizing and defending such undemocratic tactics. We would be better served by setting a precedent that undermines conservatives’ ability to use these tactics later.

Just as important is how little the tug of war over this particular appointment really matters. Presidents have always tried to select judges whom they believed would change (or reaffirm) the ideological tilt of the court in the direction they desired, and they have been strikingly unsuccessful in doing so. Mrs. Justice O’Connor herself is an excellent case in point. President Ronald Reagan wanted a conservative, not a centrist, when he appointed Mrs. O’Connor. Justice Potter Stewart’s retirement took place in Reagan’s first year in office, shortly after he rode an unapologetically conservative campaign to victory over incumbent President Jimmy Carter. Reagan was then still an ideologue. This vacancy was only the second since Roe v. Wade. Reagan was quite aware that conservative outrage over that decision had been partially responsible for his win, and that those voters would not stand for a repeat of the first post-Roe vacancy, when Republican Gerald Ford appointed John Paul Stevens. Reagan didn’t need to compromise to placate the U.S. Senate, because he had just swept the first Republican senate majority in 28 years into office with him. Reagan did consciously seek to select the court’s first woman member, but he turned to O’Connor because he wanted to appoint a conservative woman. Yet today, O’Connor is regarded as an important guardian of abortion rights.

History abounds with Supreme Court justices whose records on the court disappointed the presidents who appointed them. Recent examples include Stevens, O’Connor and David Souter (appointed by Bush’s father). Stevens and Souter are the current court’s two most liberal members. One of President Richard Nixon’s “conservative” choices was Harry Blackmun, the author of Roe v. Wade. On the Democratic side, President Bill Clinton’s two choices, Justices Stephen Breyer and Ruth Bader Ginsburg, recently provided the deciding votes in controversial decisions favoring abusive corporate eminent domain and restrictions on medical marijuana. In both of those decisions, progressives found ourselves in the uncomfortable position of agreeing with Justice Clarence Thomas, a Bush favorite.

Many of us have very low regard for this President’s intellect. The Democratic Party has done its part to nurture that perception. Are we now supposed to believe that this Dan Quayle-like dimwit will be smarter than Rhodes scholar Bill Clinton and virtually every other American president in foreseeing the judicial records of his choices to the Supreme Court?

This appointment isn’t worth the likely trainwreck over a filibuster. Senators should vote on confirmation with their consciences and put all senators’ votes on the record, but they shouldn’t preempt the vote.