Trick or treat? Thoughts of Bush’s Court are scary

  • William Raspberry / Washington Post columnist
  • Thursday, October 26, 2000 9:00pm
  • Opinion

WASHINGTON — We’ve all got our scary Halloween monsters. Here’s mine: A U.S. Supreme Court with five justices whose politics, reasoning and opinions echo those of Justices Antonin Scalia and Clarence Thomas.

Unfortunately, my monster has a very good chance of becoming real. Indeed Texas Gov. George W. Bush has promised to make it real. Not only has he been using that hair-raising phrase "strict constructionist" to describe the kind of people he would appoint to the federal courts, he’s actually said Scalia and Thomas are his prototypes.

And what’s so scary about that? Nothing — unless you happen to recall a previous invocation of strict constructionism during the Nixon era, when that phrase was taken (by some of us, at least) to signal a pulling back from such things as desegregation.

It may have been touted as a philosophical desire to have judges quit their "judicial activism" and defer to the "original intent" of the framers of the Constitution, but it was, many of us were certain, really a desire to produce a certain kind of social and political result.

It was rather like another Nixon-era phrase, "law and order." It wasn’t the denotation but the connotation that raised our hackles. No matter what the Nixon folk said, what we heard was an intention to crack down on the inner cities and tame the more militant black activists.

But that was a generation ago. Isn’t there ample evidence that, whatever his shortcomings, Bush is no racial demagogue? Hasn’t time drained the old catchwords of their more sinister meaning?

Well, yes. I don’t think Bush’s intentions are at all racially malign. My best guess is that he uses the phrase "strict constructionist" to signal to the religious right, and particularly to the single-issue opponents of abortion, that he will name justices who are likely to be sympathetic to revisiting Roe vs. Wade.

I’m guessing as well that overturning that abortion ruling is not a particularly important matter to Bush personally. What is more probable is that this is a sop he would toss to his party’s right-wing true believers in appreciation for their not making a huge anti-abortion ruckus at the GOP convention.

The problem, though, is that judges who believe the Supreme Court overstepped its bounds in Roe vs. Wade are likely to believe that it similarly overstepped in finding in the Constitution a right to privacy or a prohibition against segregated public facilities or the authority to provide special catch-up help for racial minorities.

It may not be an ironclad rule, but isn’t it a fact that strict constructionists tend also to be political conservatives?

Even the prospect of a conservative season on the Supreme Court wouldn’t bother me all that much if that season was coterminous with a prospective Bush administration. If the whole enterprise should turn out to be a blunder, why we could undo it in four years, or eight.

But federal judges, including those who sit on the Supreme Court, serve for life, and you only have to look at the present court to see that that can be a very long time. Chief Justice William Rehnquist is 76. Justice John Paul Stevens is 80. Sandra Day O’Connor is 70. Ruth Bader Ginsberg is 67. If Justice Thomas, 52, serves until he is Stevens’ age, he will be on the court another 28 years!

If you really want to frighten me, suggest the possibility that a President Bush could fill three or four vacancies with "strict constructionists" in their 40s.

I grant the likelihood that political conservatives are as frightened by the prospect of having three or four justices — and any number of federal judges — appointed by a President Al Gore. Naturally I think my own fear is better founded — in part because I don’t think a successful Gore would owe the same sort of debt to the Democratic left that a successful Bush would owe to the Republican right and would therefore seek judges nearer the center.

But maybe I’m simply refusing to consider the matter from any viewpoint but my own. That, for me, is an unnerving thought — Halloween or not.

Or could it be that, by getting myself worked up over what a Bush court would be like, I’m letting myself become one of those political monsters that scare me so much — a single-issue voter?

Now that’s frightening.

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