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9-14-05, 9:08 am
John Roberts is testifying in a cool and calculating way, letting everyone in Washington know that he will play their game, the game that cynical Europeans identify with the "political class," meaning the functionaries from the right schools who staff the executive agencies and the inner councils of the major political parties. Roberts is telling official Washington not to worry - that he is one of them and will play by their rules. In a sop to popular opinion, he has even compared the role of a Supreme Court justice to that of an umpire, saying happily that nobody goes to a ball game to see an umpire.
Nobody goes to a ball game to see if they will have the right to a pregnancy termination, protection from torture and other cruel and unusual punishments, or the rights guaranteed by the First Amendment. Baseball fans know better than Roberts that umpires don't simply follow the rules. They help to make them by having different strike zones, calling plays at bases differently, and even responding differently to the criticisms of players. Tell the St. Louis Cardinal fans, who in 1985 saw their team lose a World Series by a truly outrageous ninth-inning call, that umpires merely follow the rules.
Although sometimes umpires can be pretty erratic, players and sophisticated fans know what to expect from an individual umpire. In Roberts' case, it will depend on the team that he is judging. If the team at bat represents labor, civil rights, consumer or minority interests, he will give the corporate right who are pitching against them a big strike zone and the benefit of every doubt.
But corporate and conservative teams won't have to worry about being thrown out of games if they spike their opponents. Labor and progressive teams will start with two de facto strikes against them and have to hit the ball harder and run faster to get anywhere. Since Roberts will be the "umpires' crew chief" he will have some latitude in keeping the whole crew focused on the game as he sees it.
One last sports analogy. Bush is using the New Orleans disaster to pull a "double play" that will, assuming our present political system is not radically changed soon, strengthen the Right for decades. Roberts is as much of an ultra-rightist as Rehnquist was and can spend a third of a century on the court as Rehnquist did - only he won't have to wait for a decade to be appointed Chief Justice, as Rehnquist had to wait for Ronald Reagan to do. If Roberts gets through, Bush will be in a position to complete the double play and appoint another rightist to the court, quite possibly his Attorney General, Alberto Gonzalez, who is carrying the ball for the administration on such issues as the "right" to torture alleged enemies, and the power of the president to ignore both separation of powers and the bill of rights. John Paul Stevens, appointed by Gerald Ford thirty years ago, and a Republican liberal, will most likely be the next justice to leave. Assuming he retires while Bush is still president, Bush would then be in a position to give the ultra-right an absolute majority on the Supreme Court.
This battle is a defining moment in 21st Century U.S. politics, and there is no possible retreat for progressives. Some Democrats, many of whom in Congress belong to what Europeans call the political class, have been talking as if consent to Roberts’ nomination is a fait accompli. However, although Roberts may be one of them or what they would like to be in class terms, that is, a wealthy successful lawyer with all the right political and social connections, he is an enemy of virtually all their constituencies, from the labor movement that is the key to their elections, to progressive women and minority constituencies, to lower income voters generally, and to voters who support the separation of church and state, the separation of powers under the constitution, and the strict enforcement of the first amendment. These are the constituencies on whom the congressional Democrats and the national Democratic Party depend on for their existence, not some vague "middle class." By retreating from and appeasing the Bush administration, the Democrats are reducing their chances of regaining Congress and the presidency.
If Bush wins on Roberts, it will be easier for him to win on the next nominee and the ultra-right may be one justice away from a Supreme Court majority that will be as reckless and destructive as the Bush administration and not subject to being voted out of office.
For this reason, the fight must be made and made now to defeat the Roberts nomination. The New Orleans disaster has cost Bush support at a time that public opinion polls show him sharply losing support on the Iraq occupation, the state of the U.S. economy, and most other issues. The number of justices on the Supreme Court has fluctuated in the past and can fluctuate today.
In 1968, right-wing Republicans (whose position in Congress was weaker numerically than Democrats today, but who had the political backlash against the Johnson administration going for them) were able to force Justice Abe Fortas, whom Lyndon Johnson sought to appoint to replace Earl Warren as chief justice, to resign because of ethical questions about fees he received, and thereby postponed Johnson's appointment of an associate justice to replace Fortas. This left Richard Nixon with two appointments to make when he became president – and the chance to move the court, then at its progressive peak, to the right. The Democrats should expose, delay, postpone, filibuster, and keep Bush from appointing justices for as long as possible as his administration continues to lose support with the public. To retreat and permit the Supreme Court to fall to the ultra-right would be a disaster of unprecedented proportions.
--Norman Markowitz is a contributing editor of Political Affairs and may be reached at pa-letters@politicalaffairs.net.
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