Jewish World Review Dec. 21, 2004 / 9 Teves, 5765

Peter A. Brown

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Fierceness of Supreme battle is logical result of continuing pattern of those who lose at the ballot box looking to the courts to reverse the will of the people | For years before a presidential election, the political and chattering classes obsess, stockpile fortunes and organize outside the public eye for what they consider the ultimate battle of good vs. evil.

When it comes to Supreme Court nominations there is less lead time, but unfortunately the dynamics and downside for democracy have become much the same.

We are now in that period of outward calm before the storm. Once President Bush picks one or more court nominees, the ensuing fight will be the dominant political battle of 2005.

Given the age of the justices, if Vegas gave odds on such things, the line on Bush having the chance to appoint one or more Supremes would be off the books, since no one would take the other side.

White House aides are screening potential court nominees, their interest group allies are getting organized to help push the nomination, and Senate Republicans are working to grease the confirmation process. Meanwhile, lefty and Democratic interest groups are doing opposition research at a fevered pitch. Both sides are raising millions of dollars to finance the political wars the eventual nomination(s) will generate.

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It has been a decade since a Supreme Court vacancy occurred - the first such period in more than a century - although the 1994 confirmation of Stephen Breyer, selected by Bill Clinton, was a rather tame affair. It lacked the venom that denied Robert Bork a high-court seat in 1987 and characterized Clarence Thomas' 1991 confirmation fight.

But even those fights were of a different era. The country was not as divided and, not to put too fine a point on it, Democrats weren't nearly as desperate.

With GOP control of the White House, Congress and a majority of statehouses, Democrats now see the federal courts as their last hope in stopping Republicans from creating an America in their image.

The notion that judges are impartial automatons without partisan views and values that seep into their decision always has been one of the biggest myths of American politics.

Given that members of the federal bench are appointed for life and often give up their jobs only to the Grim Reaper, historically courts have been trailing indicators of political opinion.

Whether or not it was the Founding Fathers' intention to have the courts put a brake on the dominant political opinions of the day, that has been the historical result.

Remember, a Supreme Court appointed by Republican presidents tried to sidetrack Franklin D. Roosevelt's New Deal.

Yet there comes a point when that safeguard against unfettered majority rule is tempered by time.

The Supreme Court has now reached that point.

Eight of the nine justices are 65 or older. Chief Justice William Rehnquist's thyroid cancer is serious enough that he has not been to the court for months and is not taking part in some decisions. But at 80, he is almost five years younger than the court's leading liberal, John Paul Stevens.

The consensus is that Bush could have as many as four Supreme Court appointments in his second term. It is virtually certain he'll have at least two.

The fierceness of the upcoming battle is the logical result of the continuing pattern of those who lose at the ballot box looking to the courts to reverse the will of the people.

Unfortunately, courts are becoming the last resort for those trying to stem a tide of laws across the country produced by both voter referendums and legislators expressing the popular will. Recent decisions by courts in Louisiana and Arizona have so far stalled implementation of voter referendums banning gay marriage and public benefits for illegal aliens.

And this follows 2000, when the Florida Supreme Court, made up almost entirely of judges appointed by Democratic governors, sided with Al Gore, only to be overruled by the U.S. Supreme Court, with a majority of GOP appointees, effectively handing the presidency to Bush.

Their powerlessness in the other branches of government has made the composition of the federal judiciary an emotional flash point for Democrats. During the past two years, Senate Democrats took the historic step of using the filibuster, which requires only 40 votes to sustain, to block the Senate from voting on 10 of Bush's nominees to lower courts who would otherwise almost certainly have gotten the 51 votes needed for confirmation.

Now Senate Republican leaders are talking about changing the rules so that 40 of the 100 senators can't have such veto power. That course, known informally as the "nuclear option," would almost certainly further ratchet up the already-high tensions on Capitol Hill.

Unfortunately, when both sides think getting acceptable judges on the court is worth any price, they are willing to forfeit civility to do it.

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


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