George W. Bush’s Winter Surprise – a New Supreme Court?


Contact: Peter Montgomery or Josh Glasstetter at People For the American Way

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An Edit Memo from Ralph G. Neas

At a closed-door luncheon in September with high-dollar Republican donors, President Bush bragged that an election victory would give him an opportunity to appoint a Supreme Court justice shortly after his inauguration, and perhaps three more high-court vacancies during his second term, according to a report in Sunday’s New York Times Magazine. Gushed one enthusiastic attendee, “Won’t that be amazing? Can you imagine? Four appointments!”

This time, President Bush has his facts straight. It is almost certain that the president elected this fall will have an opportunity to nominate two, three, or four justices. It has been more than ten years since the last vacancy, the longest interval between openings on the Court in 181 years, since the administration of James Monroe in 1823. Over the past 50 years, there has been a vacancy on the average of about once every two years. We are long overdue. In fact, we could be entering an era comparable to the four vacancies between 1969 and 1972 and the five between 1986 and 1991.

President Bush isn’t talking about multiple appointments on the campaign trail, but his secret briefing raises a couple of interesting questions that deserve immediate scrutiny from the media.

First, how does the president know he would get a chance to name a justice so soon after the inaugural? Who has he been talking to? Does he have a nominee waiting in the wings?

Second, what would it mean to Americans if President Bush follows through on his stated plan to nominate justices in the mold of Antonin Scalia and Clarence Thomas – the most extreme and aggressive right-wing activists on the current Court?

People For the American Way Foundation’s Courting Disaster report, originally published in 2000 and recently updated for 2004, examines concurring and dissenting opinions by Scalia and Thomas and asks, what if their views commanded a majority on the Court? The answer is stunning – more than 100 Supreme Court precedents and the legal protections they safeguard would be at risk.

This is not just about privacy and reproductive choice – though Scalia and Thomas are eager to overturn Roe v Wade and its recognition of a constitutional right to privacy. This is also about radically restricting the Voting Rights Act to exempt, for example, state nominating conventions and judicial elections. It is about stripping Congress of the constitutional authority to protect Americans’ drinking water and other environmental resources. It is about dismantling protections against religious coercion by government officials. It is about eliminating remedies for Americans victimized by abusive employers or government agencies. It is about rolling back basic legal equality for gay and lesbian Americans.

This is not political rhetoric – it is straightforward analysis of the written opinions of Justices Scalia and Thomas. It reflects the legal philosophy and goals of the so-called “federalist” movement – the right-wing legal movement that is pushing to bring back a pre-New Deal interpretation of the U.S. Constitution and return America to a legal era when states’ rights and property rights trumped the protection of individuals’ interests and liberties. A Supreme Court majority dominated by this judicial philosophy would drastically limit the ability of Congress to pursue the common good – and would in effect eliminate the constitutional basis for progressive government.

All these are within reach with just one or two more justices in the mold of Scalia and Thomas. Three or four such justices could cement a disastrous far-right Court majority for decades to come. I urge you to pursue these questions in the days remaining before the presidential election.

See PFAW Foundation’s “Courting Disaster 2004” at