Sunday, September 04, 2005

Rehnquist and the Worst-Case Scenario

I actually thought earlier today that the country couldn't have gotten any news worse than what we've gotten since Hurricane Katrina touched down and left death and destruction in its wake. The scenes of human suffering and dying beamed from New Orleans and river delta region, and from Mississippi's Gulf coast, and the "inadequate"--no, Mr. President, INCOMPETENT--governmental responses have shocked, horrified and enraged people not only across the United States but the entire world. What's also been shocking is seeing our disengaged, disingenuous and endlessly dissimulating President and his cabinet go through the motions (though they're now engaged in a grand PR--as in PROPAGANDA--campaign to rectify the public's disgusted opinion of them); grossly incompetent leaders of the key first-response federal agencies; an incommunicative cross-governmental bureaucratic system; a big city police force that disintegrated before the cameras; and one of the nation's most important historical and cultural respositories, and economic engines, nearly washed away under fetid floodwaters. Sadly, the devastation and the incompetence continue as I type this entry. But Hurricane Katrina did not occur in a bad news vacuum: before it wreaked havoc, other bad news included the ongoing war and constitutional crisis in Iraq, the rise in gas prises and the US national poverty rate, George W. Bush's nomination of John Roberts to the Supreme Court, several dreadful recent bills passed by Congress, the splintering of the major labor union coalition, and numerous other crises in Washington and across the globe.

And the bad news keeps coming, with repercussions that may extend as far into the future as the devastation of New Orleans. The extreme right-wing Chief Justice of the Supreme Court, William H. Rehnquist, died today of thyroid cancer at the age of 80, leaving the Chief Justice seat open on the bench and possibly opening up the possibility of three seats for the "King of Vacations"--to use Hugo Chávez's term for our President, who couldn't be bothered to fly back to Washington to address the Hurricane Katrina situation or to address the glaring pre-9/11 Presidential Daily Briefing that stated that Osama bin Laden was "determined to attack in the United States" but did rush back from Crawford in order to sign legislation that would meddle with Terri Schiavo's husband's spousal rights--to work with.

Rehnquist has gained notoriety during his years on the Supreme Court, which he joined after being nominated by Richard Nixon in 1971, for his conservative views, which have often favored state powers against individual rights, and states' rights against federal control. He also strongly opposed desegregation and abortion rights, and supported school prayer and capital punishment. His extreme beliefs, with have had a racist cast, were apparent years before, however, when as a law clerk for Supreme Court Associate Justice Robert Jackson he wrote a brief in favor of racial segregation, and later, while a Republican activist in Phoenix, Arizona actively worked to discourage Blacks and Latinos from voting. During his years on the Burger Court, Rehnquist was often in dissent (his judicial and ideological inverses being the famous liberal judges William J. Brennan and Thurgood Marshall). But in the 1980s, with Ronald Reagan's presidency, Rehnquist no longer found himself a right-wing lone wolf. First Reagan appointed the "Federalist" Sandra Day O'Connor in 1981, and then, after elevating Rehnquist to the Chief Justice post to replace Warren Burger in 1986, nominated the "strict constructionist" Antonin Scalia in replace him. President George H. W. Bush appointed Anthony Kennedy, an economic conservative in 1990, and year later, in 1991, seated the ultraconservative Clarence Thomas, giving Rehnquist a five-person conservative, pro-states' right, anti-Congress juggernaut, at least for much of the 1990s.

With Rehnquist's death, George W. Bush has a number of options for remaking the court. Almost all will involve selected right-wingers to replace both Rehnquist and O'Connor; now that he's not up for reelection and has only his far-right base and the Straussian neoconservatives to count on, why would he nominate a moderate? For the good of the country? That's even funnier than the central joke of The Aristocrats!

I think the worst-case scenario would be this:

He would elevate Clarence Thomas, one of most conservative current members of the court--with some libertarian views--to the Chief Justice position. By nominating Thomas, Bush would please his Christian conservative base and conservative Black clergypeople and activists, and also make history as the president who appointed the first Black Chief Justice. Thomas, who barely made it onto the court in a 52-48 vote in 1991, would probably be voted up by a similar margin. In truly cynical fashion, Bush's and Thomas's supporters could argue that opposing him was racist, and in light of the alleged rightward drift of the Republican Party and many of the appellate courts, could even argue that he was in a "mainstream" of sorts.

With the attention on Thomas, John Roberts, whom Bush has nominated to replace Sandra Day O'Connor, would waltz in without much Democratic Senate opposition. Roberts has a minimal paper trail as a jurist, but his writings as a law clerk and as a member of Ronald Reagan's legal staff show him to be on the ideological Far Right. In addition, he served as a legal coach during the contentious post-election struggles in Florida in 2000.
By elevating Thomas, Bush would open up a third slot on the court, to which he could appoint his close friend, Alberto Gonzales, the current Attorney General. Were Gonzales confirmed, which seems likely given the Republican majority in the Senate and the likelihood that some conservative Democrats, as well as Latino moderate Ken Salazar (D-Colorado) and African-American progressive Barack Obama (D-Illinois), who have both repeatedly voted for candidates of color across the ideological spectrum, would provide a majority vote cushion. Bush would again make history by appointing the first Latino to the Supreme Court. While Gonzales's rulings during his brief tenure as an associate judge on the Texas Supreme Court varied between moderation and conservatism, his political approach has been conservative, with deference to the executive branch, and it seems likely that he would write reliably from that position more so than any other. The most damning recent indictments against him are his drafting of memoranda, while White House Counsel, supporting the use of torture methods for the "War on Terror," and his main organizational focus as Attorney General on pornography involving consenting adults.

Even if Bush didn't elevate Thomas and nominate Gonzales, he could elevate Scalia, and nominate a similarly ultraconservative judge, with "originalist" views, as a replacement. (I actually fear Thomas as Chief Justice more than Scalia.) If the third nominee were a woman, even a woman as far out there as Janice Rogers Brown (a two-fer, Black and extremist), Bush would again be able to gain some positive press for himself from the compliant, easily misled media, and possibly achieve a boost in the polls. Any additional "capital" in this man's hands, as events over the last five years have proved time and again, is like plutonium.

Taking a longer-term view, the youthful quartet of Thomas, Scalia, Roberts, and Gonzales, if they could secure periodic votes from Associate Justice Kennedy, would be able to issue conservative to ultraconservative rulings on fairly frequent basis. It's unlikely that Kennedy, who has drifted increasingly to the left in several recent rulings, would concur in overturning Roe v. Wade, Lawrence v. Texas, or several other cases that have increasingly vexed the Right Wing, but his opposition to affirmative action and his role in Bush v. Gore are well known. Were 85-year-old John Paul Stevens to retire either before Democrats gain control of the Senate (at the earliest in 2006) or before a Democratic president took office (in 2008) or both, Bush could make another nomination to ensure an ironclad right-wing majority for decades to come....

Update: W has decided upon John Roberts to replace William Rehnquist as Chief Justice, bypassing both Scalia and Thomas. Jeffrey Rosen was on Brian Lehrer's WNYC show this morning (Monday, September 5th) arguing that Roberts will be to the left of Rehnquist on some issues, while also claiming that Roberts adheres to the principle of stare decisis. I'm not a legal scholar, but I'm also not at all convinced by Rosen's defense. I fear Roberts, with his lifetime appointment and immense power, will be even more conservative than anyone envisions. Doug Ireland, in his usual mordant way, breaks down the dangers of a Roberts-led court in his post today, "Bush's Roberts-for-Chief Ploy." (Though he calls it a "black day for America," I never go along with the usual "black=negative" metaphor.) To quote:

One of the most attention-getting will be the case involving the Bush Administration's legal assault on Oregon's right-to-die-with dignity law, which John Ashcroft began the effort to nullify and which Alberto Gonzales is also committed to erasing. The new Chief Justice is a devout Roman Catholic, and his church was in the forefront of the Terri Schiavo case. The ultra-right Christer lobby, the Family Research Council, has already given its stamp of approval to Roberts, telling the Washington Post this morning, "We have a measure of confidence that he would be better on our issues than Sandra Day O'Connor." What FRC means by "our issues" are things like diminishing abortion rights and the criminalization of homosexuality (O'Connor voted against the former and for striking down the latter).

Check his post out....


  1. Hey John,

    I'm a little more optimistic here, although I fear that some of what you fear might come true with the second vacancy. I was skeptical about Roberts, but have come to believe that he is a minimalist, and not a fundamentalist like Clarence Thomas (who, I agree, is the most dangerous justice on the Court).

    [This is view is borne out by Cass Sunstein, from a piece in the 1 August issue of TNR.]

    As for Justice O'Connor's seat, that is probably where we're likely to get smacked--it's hard to imagine that Dubya will exercise a *more* palatable choice than John Roberts.


  2. yes - it keeps getting worse from new orleans to the supreme court - as i said, america is catching up with the rest of the world ...

  3. Bill, I hear what you're saying. Sunstein was on the radio yesterday, and like Rosen talked down the radical aspects of Roberts' writings. I'm not convinced. I think the man will be a nightmare if he is able to cobble together a majority. It's only a little bit less disturbing to see that he's replacing the Rehnquist slot, but does he have the experience to be Chief Justice? I just hope Kennedy keeps moving to the center on social issues and doesn't allow the right-wing attacks to intimidate him. Supposedly he could not understand why he was under attack by some of those nutcases.