Why has Teddy Kennedy reverted to his apocalyptic rhetoric of Bork-battle days? Why is Chuck Schumer threatening an inquisition of Bush nominees? Why is the liberal media wailing that, to avoid a bloody Senate battle that will “divide” the country and “poison” our politics, Bush must nominate a “moderate” to the Supreme Court to replace Sandra Day O’Connor?
Answer: stark fear. If the Left loses the Supreme Court, the Left loses the Culture War. The Left loses the country. For 50 years, the high court has been its indispensable ally in the campaign to remake America into a secular and egalitarian society. The court has served as the battering ram of a social revolution that has to be imposed upon America—because it is hated by most Americans.
No Congress in the 1960s would have voted new rights for criminals or new restrictions on cops. No Congress would have outlawed the death penalty or declared abortion, naked dancing, and homosexual sodomy to be constitutional rights. No Congress would have permitted desecration of the flag, forced busing, or discrimination against white kids at state colleges. No Congress would have outlawed prayer, Bible-reading, and the Ten Commandments from classrooms. Liberalism had to be imposed by unelected judges who could not be removed by popular vote.
Under Earl Warren—“the biggest damn fool mistake I ever made,” said Ike—the court, controlled by New Deal Democrats unhappy with the country they lived in, impatient at the pace of change, anxious to wield real power, began to impose its will. Its first act of judicial supremacy was Brown v. Board of Education.
Though Eisenhower and many in Congress seethed over the court’s assertion of primary jurisdiction over race relations and education, they did nothing. Warren, famous heretofore for being the California attorney general who had demanded that all Japanese be interned in camps in World War II, was suddenly liberalism’s hero.
But the court’s subsequent decisions that ordered intercity busing to force integration tore the Democratic Party apart, North and South, and created a backlash that propelled the Wallace and Goldwater movements. I yet recall being invited onto a TV show in St. Louis in the early ’60s where the hostess asked me, to the laughter of her audience, if the Right thought Warren should be impeached. “No,” I replied, “we believe he should be hanged.”
In Alton, Illinois, where Phyllis Schlafly reigned, it was said there were so many billboards savaging Warren that when third-graders were asked on a test to identify the Chief Justice, half of them gave his first name as “Impeach.” The Warren Court, with its arrogance and radicalism, turned Middle America sharply to the Right.
In June 1968, when Nixon, who had campaigned on a pledge to name “strict constructionists” as justices, appeared a potential president, Warren cut a deal with LBJ and resigned as chief justice, contingent on the confirmation of a successor. LBJ nominated his crony, Justice Abe Fortas. But a bipartisan coalition blocked Fortas, who soon had to resign in a scandal.
But in the Judges War since 1968, which is ultimately about whether we shall be a judicial dictatorship where black robes rule or a democratic republic where the people rule, Republican presidents have failed more often than they have succeeded.
Nixon chose a great justice, Rehnquist. His other choices, Burger, Blackmun, and Powell, all voted for Roe v. Wade. Ford’s lone nominee, Stevens, was a lemon, as was Souter, named by Bush I. Reagan succeeded with Scalia but failed with his affirmative-action choice O’Connor and with Tony Kennedy, elevated when Bork was rejected.
Looking back at the great court battles since 1968, all have involved the character assassination of nominees seen as conservative: Haynsworth, Carswell, Bork, and Thomas. But for Clinton nominees Stephen Breyer and Ruth Bader Ginsburg, liberal judicial activists both, the Senate Republicans rolled over.
The Left gets it, but many Bush Republicans still don’t. They don’t like moral issues, and they don’t enlist in culture wars. But as the Left has turned the Supreme Court into a judicial tyranny more powerful than the president or Congress in deciding social and moral questions, Republicans have two choices: they can fight the Judges War, or they can lose the war.
Neutrality—a Bush choice of a non-controversial justice—will be, and will be seen by the president’s friends and enemies alike as a stacking of arms, a surrender, a cowardly retreat in the Culture War.
The Judges War is about Bush’s legacy and America’s future. No issue is more crucial. Whether America is kept safe for Christianity is more important than whether Iraq is made safe for democracy.