Judicial Armageddon
by Ken Bell

As if it weren’t already true before Justice Sandra Day O’Connor decided to offer her resignation from the Supreme Court this past week, I am now supersaturated with commentaries, analyses, threats, promises, evasions, diatribes and just plain nonsense about what the “mainstream” media seem determined to pitch as the coming judicial Armageddon.

“[T]he political heavens are surely going to fall in her wake,” pontificates Andrew Cohen in the Denver Post’s “What’s next for Supreme Court?”

In the July 11 edition of Newsweek, Howard Fineman and Debra Rosenberg declare ex cathedra that “The Holy War Begins:
Bush must choose between the big tent or the revival tent. Inside his Supreme Machine.” They faithfully report the Manichaean consensus: “‘This is probably the most significant Supreme Court resignation and nomination we’ll see in our lifetimes,’ said Jay Sekulow, counsel of the conservative American Center for Law and Justice. His counterpart at the liberal Alliance for Justice agreed. ‘The stakes are now enormous,’ said Nan Aron.”

This millennial hyperbole is most evident from among the ranks of the sinistral extreme. “In the coming weeks the president and Senate will decide whether we have a Supreme Court that will preserve the social justice achievements of the 20th century, or whether we will retreat to a 19th century interpretation of the Constitution, with individual rights given far less protection against state power and corporate irresponsibility,” screeches Ralph Neas, president of the ironically named “People for the American Way.”

Many of these murmuring shamans discern fateful omens. “O’Connor Resignation Creates Ominous Court Vacancy” asseverates a Planned Parenthood press release. “The resignation of Justice O’Connor creates a devastating and dangerous moment for reproductive health care and women’s rights,” adds Planned Parenthood’s Interim President Karen Pearl. “Her departure places women’s health at risk, endangering the future of reproductive rights in this nation.” Similarly, NARAL Pro-Choice America’s President Nancy Keenan expostulates that “we’ll look back on Justice O’Connor as someone who put reason ahead of ideological fervor, which stands her in sharp contrast to many of the judges who might replace her if the radical right gets its way.”

Much of the ostensibly objective analysis about “what is expected to be a tumultuous fight” is delivered with a dire warning [my emphasis]:

“There are huge risks for Bush no matter which way he moves. He faces enormous pressure from the right to appoint someone more conservative than O’Connor. But such a move risks a potentially bruising battle with Senate Democrats and a backlash among voters in the middle of the ideological spectrum, who may worry about the GOP’s social and cultural agenda.” Yes, exactly, it’s all those middle of the road types, Kennedy, Leahy, Trotsky, moderate guys who worry about that vicious, loathsome and repugnant agenda sure to condemn us to a living hell. Sounds objective to me.

The editorialists of the New York Times captured the sentiment admirably yesterday, explaining that “Justice Sandra Day O’Connor’s retirement is going to trigger an enormous political collision”, unless, of course, the forces of evil relent [again, my emphasis]:

“So President Bush now has a choice to make. Will he satisfy the right wing of his party and nominate a candidate for O’Connor’s spot that is far more conservative than she? Or will he be content to select some of the many fine moderate-right voices in the law, men and women who are more in the O’Connor mold and not then as likely to generate a big fight on Capitol Hill?”

Who, you may ask, would be an example of such fine moderation? Why, of course, the ever-courtly David Souter.

“She was more of a centrist, after all, like her old friend Justice Lewis F. Powell Jr., who was on the court when O’Connor arrived in Washington, and like the courtly David H. Souter is today. But the reason no one sings odes to Souter – he is probably even more despised by the right than is O’Connor, even though he was appointed by the first President Bush – is because centrists, whether they are legal or political, are these days a hunted and diminishing breed. That’s a shame, of course, because what both the country and the court desperately need right now are precisely what they both are most unlikely to get: moderation.”

“We are, in fact, beginning to miss her already as we envision the bitter confirmation battle that will take place if President Bush nominates a hard-line conservative to replace her. Senate Democrats, who have been willing [!] to block ideologues nominated to the lower courts, will certainly do everything they can to prevent a right-wing ideologue from joining the nation’s highest court.

“Before that fight begins, Mr. Bush should ask himself whether Americans want to live in a country where the handicapped cannot find a champion in the law, where women are stripped of all abortion rights, where universities are barred from offering a hand up to deserving minority students. [But what about his program for reviving slavery and genocide?] Then he should ask himself how much of his own party’s current success has been due to Justice O’Connor’s ability to save the right wing from the worst consequences of its extremism.” How fortunate that these dangerous fanatics have been protected from themselves. If only we could institutionalize them all, and give them treatment.

So now we know what the essence of this Armageddon really is: “The War of the Worlds”. Because these guys are from an alien planet.