Where's debate about Supreme Court?
THOUGH IT affects children unborn, the subject of the Supreme Court has come up only once in the last 12 years of presidential debates. If it does not come up tonight or next week in the final debate between President Bush and Senator John Kerry, the debates will have been a major disservice, if not a disgrace. The only time the court was center stage was in 2000 when Al Gore brought it up against George W. Bush. "The main issue is whether or not the Roe v Wade decision is going to be overturned," Gore said. "I support a woman's right to chose; my opponent does not.
"It is important because the next president is going to appoint three, maybe even four justices of the Supreme Court. And Governor Bush has declared to the antichoice groups that he will appoint justices in the mold of Scalia and Clarence Thomas, who are known for being the most vigorous opponents of a woman's right to choose."
Bush claimed he had no litmus test on his nominees to the high court. "The voters will know I'll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy," Bush said. "I don't believe in liberal, activist judges."
Gore countered, "When the phrase `strict constructionist' is used and when the names of Scalia and Thomas are used as benchmarks for who would be appointed, those are code words -- and nobody should mistake this -- for saying that the governor would appoint people who would overturn Roe v. Wade. I mean, just -- it's very clear to me. And I would appoint people who have a philosophy that I think would make it quite likely that they would uphold Roe v Wade."
Ironically, an activist Supreme Court essentially appointed Bush president during the Florida recount. Since then, Bush has pushed for a retrograde cornucopia of right-wing justices who have likened prochoice supporters to Nazis, lowered a sentence for a cross burner, and say homosexuals can be legally locked up.
Most court observers say the next president may get to replace up to four of the nine justices on the court. If Chief Justice William Rehenquist retires, Scalia would be a clear favorite to replace him. Scalia has left no doubt in recent speeches that he wants the Supreme Court to continue its retreat from being the guardian of equality.
At Harvard, Scalia said he questions "the propriety, indeed the sanity of having value-laden decisions such as these made for the entire society" by judges. He said, "It is blindingly clear that judges have no better capacity than the rest of us to determine what is moral."
At a speech in Washington, Scalia said if people want legislation or a constitutional amendment, "Persuade your fellow citizens" instead of legislating through the courts. At a speech in Arkansas, Scalia claimed, "Nothing qualifies me to decide if there should be a fundamental right to abortion or assisted suicide."
All this self-deprecation and self-disqualifying is easy if you are a straight, white, and wealthy male, the historical baseline of privilege in America. It is blindingly clear that America would have made far less progress than it has today if the battle for civil rights had merely been left up to black people, women, homosexuals, and people with disabilities to "persuade your fellow citizens."
Scalia loves to talk about the 1920 amendment giving women the right to vote as a great example of national persuasion. Scalia's privilege prevents him from remembering that it took more than 130 years for women to "persuade" men that they were equal enough to vote. No wonder that right-wing icon Pat Buchanan said Scalia would be a "magnificent replacement" for Rehnquist.
Once upon a time it was assumed the Supreme Court was here to defend less privileged and even persecuted minorities. Today Bush praises Scalia, who says that while the 1954 Brown school desegregation decision had good intentions, the court went "beyond what it should be doing. . . . That doesn't prove it's good for a democratic system as a whole."
Bush's other model justice, Clarence Thomas, once ruled that prison guard brutality is not cruel and unusual punishment. The chance that the high court may become a body that issues more cruel and unusual decisions should be a mandatory point of discussion.
The last 12 years of debates have touched on an alphabet of issues from abortion to al-Zarqawi. However vital those issues are, we cannot forget the one that reigns supreme.
No other body of nine people make decisions that affect so many aspects of American life. The participants in the last two debates owe it to the American people to ask the question that helps them decide which candidate will appoint justices who honor the Supreme Court's tradition of comforting the afflicted and which one will seek replacements who will comfort the comfortable. The moderators must not forget that as fiery a topic as Iraq is today, a right-wing Supreme Court will scorch Americans for generations to come.
Derrick Z. Jackson's e-mail address is jackson@globe.com.
