5-4

That, incidentally, has been the vote in many a controversial case over the last ten years of U.S. Supreme Court jurisprudence. The future is Bush v. Gore, a case the court, had it adhered to precedent, should have found non-justiciable. There, on a 5-4 margin, the majority cast aside its long held principles of federalism, and endorsed a dubious equal protection argument, where previously they had been loath to find an equal protection argument without subjecting the argument to a rigorous standard. In a weird loophole, the Court stated that this was a one-time only instance, that stare decisis was not to apply to this decision. The majority was whom you might have expected--Rehnquist, Scalia, Thomas, O'Connor, and Kennedy. It's a black mark on the court, and everyone knows the reasons--and if comments from law clerks and asides from the actual Justices are to be believed, so do the Justices. Bush v. Gore may not be a legal precedent--but it is a precedent nonetheless, with Bush in for four more years. Judges putting reason, precedent, and the law aside for extra-judicial reasons.

This current Court has been together longer than any previous makeup. Rehnquist is a Nixon appointee. Stevens is a Ford appointee. O'Connor, Scalia, and Kennedy are Reagan appointees. Souter and Thomas were appointed by Bush, Breyer and Ginsburg by Clinton. 2 of them are over 80. 2 of them are over 70. All but Thomas are in their 60s. Some have had heart problems, some have had brushes with cancer. Rehnquist most recently has been stricken with thyroid cancer and underwent a tracheotomy--and is undergoing chemotherapy. It is a certainty that Rehnquist's time on the court is at an end. Certainly, before his term is through, barring impeachment or other circumstances, Bush quite possibly will be in a position to appoint 3, if not 4, Supreme Court justices, not to mention the large number of Federal judgeships he will be able to fill.

So that is where the situation is at.

Why does this matter?

Well, as a result of sane Democratic social policy and foreign policy which created the necessary conditions, and despite Republican efforts to the contrary, life expectancy and quality of life has gone up in this country over the past 40 years. People are living longer and are living better in their old age. Rehnquist has perched like a large, ugly bird on the Supreme Court for more than 30 years. Whoever replaces him is likely to last just as long.

And now George W. Bush is the one who will replace him. Yes. The events of 11/2 have now made it certain that, in addition to the many other walls in our national house that he has marked with crayon scrawls, Dubya will now make his indelible mark on federal jurisprudence even more boldly.

It wouldn't be a problem if he knew what he was doing. Sadly, however, Dubya has thus far shown himself to be of the same mindset as many of the social and political radicals in his party.

Before going further, Loyal Opposition must confess that he is currently studying law--and so, perhaps, Loyal Opposition's perspective with regard to this being a central issue might be slightly biased. Even though Loyal Opposition admits that many lawyers and law students are evil, hamster-wheel-running stunted personalities, the law itself and our nation's history of jurisprudence and its legal principles are to be accorded respect and never taken for granted.

The radicals who make up Dubya's wing of the Republican party have shown a consistent disregard for many independent disciplines, using and defiling many in rabid pursuit of their irrational goals. Political scientists, theologians, economists, foreign policy experts, intelligence analysts----no discipline has proved too steeped in independent tradition, integrity, and history for them to fiddle with. For the last twenty-five years, there has been an increase in number of those who now wish to use the law and the judiciary as an appropriate tool to use in the service of their ideology. This is disgusting.

The law has been misused in the past. Judges have been corrupt. Hey, take a look at the Salem Witch Trials, where judges conducted trials and pronounced sentence based on conclusions from religious faith, not from reason and deduction in the service of socially and economically efficient and just outcome. Most certainly wouldn't want that to happen again. Except for the radicals.

But our common law system stems from ideas forged in the Enlightenment---that reason trumps everything. Judges are supposed to be impartial expert analysts who base their decision on stare decisis and principles of efficiency and justice. Stare decisis means that one generally respects, except where distinguishable by facts or overwhelming public policy interests, the law of the land.

Good judges know this. Analysis does not take place in a vacuum, but most recognize that the decisions they make will echo down and be judged by other judges, lawyers, and private citizens. Good judges respect the reputation of the independent judiciary as worth protecting.

But the radicals don't care. Stare decisis means nothing to them where it stands in the way of their ultimate goals.

Which is why this current situation is so dangerous---in the post 11/2 world, the independent judiciary is at stake, and, indeed, the process of selecting an independent judiciary is at stake. Ever since the Reagan years, when the radicals started to poison the judicial pool with reactionaries and fundamentalists, the confirmation process has heated up. There was a time when nominees wouldn't even have to show up at their confirmation hearings. Until Robert Bork. And after he was forbidden a seat on the Supreme Court, the radicals redoubled their efforts to take the circuit courts. The position of Chairman of the Judiciary Committee has become very important. All in all, Orrin Hatch has straddled the fence between hackery and propriety, after all, it was his advice to Clinton to propose a moderate voice like Breyer, rather than risk the possibility of another, more rabidly liberal nominee being Borked. Arlen Specter, who many, before this week, thought would be the next Senate Judiciary Committee Chairman, has been pilloried with ferocity by the radical forces who backed Bush for the express purpose of being able to mold Constitutional law in their image. The fact that Democrats and the media didn't make this a larger issue than the Swift Boat Adventure is a profound system failure. Specter actually dared profess his desire that judicial appointees be more concerned with proper analysis and respect for an independent judicial voice, rather than be (and Loyal Opposition hates to swear, but,) batshit crazy. Then the hammer came down.

Now, Arlen Specter is no angel--there's a lot to be said against him. But. The White House, fellow senators, policy organizations, and certain media cheap-shot-artists felt it incumbent on them to reeducate Specter away from the position that what we need are more competent judges. This is very bad. And it, so far, has worked--Specter has backed away from his previous position, and started singing the radicals' tune. Party discipline will extend to three branches.

The concept of separation of powers is there for a reason. In Nazi Germany, it was the acquiescence of the judges that lent Hitler's initial oppressive laws and policies legitimacy and the force of law. The judiciary is important. It serves as a check and balance. The Senate and House serves a check and balance. Well, no more. They no longer serve to rein in an overbearing executive or an overreaching legislature.

The radical element has threatened the framers' intent for institutional independence, integrity, and the balance of power and checks and balances that flow therefrom--principles that have been argued about in the courts in proper, rational fashion for years. Petty politics has always been part of the system. But whatever intellectual approach to the issues was carved out by the judiciary, whatever evolution in jurisprudence flowed from the give and take, it was largely rational, based on precedent or policy.

Loyal Opposition has no beef with those who in good faith espouse conservative principles--Loyal Opposition has been known to agree with many a Scalia decision (he's not always ranting about how the homosexual army will one day make us all wear purple fuzzy slippers). If you get to where you get because you thought it through, and you're balanced in your analysis based on facts, more power to you. But we're moving towards faith based analysis these days.

And when it comes to Clarence Thomas, Loyal Opposition doesn't know WHAT to think. He has often been described as Scalia's lapdog. Not true. Scalia is a pompous bully and has his own ethical lapses and fundamentalist worldview with respect to some things. But Scalia is a mensch--he's a true strict constructionist (with some exceptions). He respects history and the rule of stare decisis. Clarence Thomas, if you read enough opinions, has a different attitude. He could care less about 200 years of judicial precedent if he doesn't like the result. Many times his dissents amount to: "Well, there's a lot of precedents here, but I'd really like to proceed as if they didn't happen, because they had no idea what they were talking about. Pass the Sanka."
Thomas also is a strict constructionist, but, unlike Scalia, who occasionally will just grumble about how far we've fallen from 1789 but recognize modern reality, Thomas wants us to put on our blindfolds and pretend that it actually IS 1789. Too bad for him. As Al Sharpton said, if it wasn't for those pesky post-1789 cases, Thomas never would have gotten to law school. Sometimes progress is a two-edged sword.

He's been described by George W. Bush as an ideal picture of a Supreme Court justice. And would Bush pass up the chance to appoint the first African-American Chief Justice? Time will tell. Bush has already appointed an openly racist judge to the federal judiciary in a sneaky recess appointment. His appointees have, on the whole, been fundamentalist in nature--concerned about those ineffable heartland values we hear so much about. However, there doesn't seem to be much concern for the value of independent analysis. With Bush's appointees hanging on into their 80s, we will be looking forward to judicial pronouncements that are more like sermons than legal opinions. The fear is that the dignity of the judicial robe will cloak what are merely reactionary, prejudiced faith-based opinions. Fortunately, if things progress as they have, the judicial branch won't have that dignified position for very much longer. Thus endeth Loyal Opposition's own sermon.