Reflections on the Importance of the Bork Defeat and Future Supreme Court Nominees on Americans' Rights and Freedoms

Statement of Ralph G. Neas, President, People For the American Way Foundation

For all those who have ever questioned the importance of the Senate’s bipartisan rejection of Robert Bork’s Supreme Court nomination in 1987, this week’s Supreme Court decisions on civil rights and privacy should be a resounding answer.

If Robert Bork had been confirmed, there would be no enhanced constitutional right to privacy, including the privacy rights of gay Americans. If Robert Bork had been confirmed, affirmative action programs in higher education would not be constitutionally permissible. And if Robert Bork had been confirmed, there would be no constitutional right to reproductive freedom, as well as many other rights and liberties that have been part of our constitutional fabric for decades.

These decisions have also underscored the importance of preventing a Scalia-Thomas majority on the Supreme Court. As People For the American Way Foundation has recently documented in Courting Disaster, Justices Scalia and Thomas are eager to have the Court aggressively reverse gains in civil rights, environmental protection, privacy and reproductive rights, separation of church and state, and more. In fact, a Scalia-Thomas majority on the Court could overturn more than 100 Supreme Court precedents going back to the New Deal.

This week’s majority and dissenting opinions make it clear that new justices who embrace the Scalia and Thomas judicial philosophy would turn back the clock on important social justice achievements. President Bush has the opportunity to be a uniter, not a divider, by consulting with senators of both parties and choosing a nominee who is committed to protecting Americans’ privacy and civil rights and preserving the social justice gains of the last 70 years. For their part, senators must fulfill their constitutional responsibility to carefully evaluate any nominee to the nation’s highest court, and make an independent judgment about that nominee’s commitment to upholding Americans’ civil rights and constitutional liberties.

Contrary to White House spokesman Ari Fleischer’s seeming backpedaling at today’s White House briefing, advocates across the political spectrum have repeatedly noted that as a presidential candidate, Bush called Scalia and Thomas the models for his nominations. Indeed, a number of right-wing leaders have been warning Bush of the consequences of failing to put forward nominees in the mold of Scalia and Thomas.

Regardless of whether a Supreme Court resignation occurs next week, next year, or the year after that, vacancies are inevitably coming in the near future. Indeed, it has been nine years since the last Supreme Court confirmation, the longest interval between vacancies since 1823. Over the past half century, there has been on the average one Supreme Court nomination every two years. Over the next few years, we could have multiple vacancies, comparable to the four vacancies between 1969 and 1972 and the five between 1987 and 1994.

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