Jewish World Review March 16, 2004 / 23 Adar, 5764

Peter A. Brown

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Scalia recusing could give Kerry a bruising | Supreme Court Justice Antonin Scalia is a brilliant jurist and, depending on one's political persuasion, a hero or the devil incarnate.

But he may also turn out to be a master political strategist by happenstance.

He could indirectly give President Bush a re-election advantage by forcing Democratic nominee John Kerry to choose between alienating his outspoken, secular base and the much larger group of Americans who think including G-d in the Pledge of Allegiance is a good thing.

Here's how:

Scalia, perhaps the court's most conservative member, has disqualified himself from hearing the March 24 appeal of the decision from the federal appeals court in California that struck down as unconstitutional the phrase "under G-d" that is in the pledge.

There is some irony in this, because Scalia has resisted calls to recuse himself in another case involving his friend, Vice President Dick Cheney.

But, on the pledge case it is possible that the high court will deadlock when it rules this spring without Scalia. A 4-4 split of the remaining justices, who generally fall along the conservative/liberal divide that way, would mean the appeals court decision would stand.

Were Scalia to hear the case, the chances of the pledge being struck down would be very, very small.

The other eight justices have split evenly on a number of highly charged political issues, most prominently the 2000 decision that ended a recount of Florida's votes and ensured George W. Bush's election as president.

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Scalia, appointed by President Reagan, has been scornful in public about the lower-court ruling in the pledge case. He therefore decided it would be improper to rule on the case because his impartiality could be questioned.

But a split verdict that upheld the lower-court ruling could potentially create a monster political issue for the fall campaign.

Republicans, and probably some Democrats, would call for a constitutional amendment to overrule the judicial system.

There would certainly be a vocal minority of Americans who would applaud such a court verdict, but they would be just that.

An amendment would take years and might not even succeed, as has been the case with a similar 40-year-old effort to allow prayer in schools, but it would surely inject a major new question in voters' minds.

One doesn't have to be a mind reader to see why Bush and the GOP would back such a drive. It would allow the president to paint his opponent into a box strategically on an issue that Bush could be expected to intrinsically embrace and profit from politically.

Forcing Kerry to take a position on such an amendment would seem to have little downside for the president, but could have serious political costs for the Democrat.

Here's the interesting part:

We know that whether one is religious is a highly accurate barometer of his or her voting behavior. The more religious a person, the more likely that person is to vote Republican and vice versa. The exception is blacks, who generally vote Democratic regardless of their church attendance.

All this means is that it is pretty easy to see that the vast majority of Americans (and all but a handful of Republicans) will see nothing wrong with the "under G-d" phrase, but Democrats will be much more split over the issue.

In addition, many of the interest groups that hold great sway within the Democratic Party could be expected to oppose an amendment to protect the "under G-d" phrasing.

If the court were to split 4-4, the Democratic nominee could face the very real decision of whether to anger his own core supporters, among whom a huge turnout is a prerequisite for victory, or risk alienating millions of "swing voters" who see nothing wrong with the phrase.

Of course, the pledge is not an overarching issue like the economy and national security, upon which presidential elections normally are decided.

However, as the 2000 race shows, in a close election, anything can make the difference.

Moreover, given the reality of the Republican push for a constitutional amendment to ban gay marriage, a debate about the pledge would help the GOP strengthen its case that the Democrats are out of touch with middle-American values.

A split Supreme Court verdict on the pledge would also add fuel to the existing Republican effort to call attention to the Democratic intransigence on blocking Bush federal court nominees.

If the economy continues to recover and/or the situation in Iraq improves, all this probably won't matter because the election won't be close.

But if they don't, Scalia's ethics could turn out to be very useful to the president.

Peter A. Brown is an editorial page columnist for the Orlando Sentinel. Comment by clicking here.


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