make any difference who wins the presidential
Both major candidates are so
close to each other on so many major issues—immigration,
foreign policy—that it`s very hard to tell, and many
conservatives who usually vote Republican are
asking why they should vote for President Bush at
One reason they should, according
to conservatives who disagree with them, is the Supreme
Court. Whoever wins the White House will almost
certainly appoint some new Supreme Court justices over
the next four years, because the current crop is getting
so decrepit they won`t be able to swing their gavels
But one reason you shouldn`t cast a
vote for President Bush based on who you might imagine
he would appoint to the court is offered by Georgetown
University law professor
Mark Tushnet in the current issue of Legal
Affairs. Quite simply, the reason is that Mr. Bush`s
appointees would not be very different form John
"A justice nominated by George
W. Bush and confirmed by the Senate will be somewhat
more conservative than a justice nominated by John Kerry
and confirmed by the Senate," Professor Tushnet
writes. "Beyond that, there`s not much to say. The
differences are going to be smaller than partisans on
either side expect, and calculations that we can`t
foresee will affect the politics of nomination and
and Duller, September 2004]
Certainly the track record of the
Republican Party over the years supports the professor`s
view—maybe. We have what conservatives regard as a
constitutional crisis in this country mainly because of
the Republicans themselves.
Earl Warren, William Brennan, Harry Blackmun, John
Sandra Day O`Connor,
David Souter and Anthony Kennedy were all
Republican appointees. Not one is a reliable
conservative, and some have earned themselves niches in
the pantheon of liberalism and the annals of
It`s perfectly true that
reasonably conservative justices like the incumbent
chief William Rehnquist and really consistent
Clarence Thomas and
Antonin Scalia have been Republican appointees. But
own record so far is not so
philosophically pure as to give any good reason for
thinking he would appoint more like them.
Nor is it clear that even if he did
appoint them they could be confirmed.
Professor Tushnet notes an
interesting pattern from the recent history of
Republican court nominees. Given the internal politics
of the Republican Party, almost any judge the party
nominates to the court will have to be against
Roe v. Wade,
the 1973 decision that overturned all state
laws against abortion, and take a pro-life position.
"And being against Roe v. Wade
is close to a death knell for a Republican nominee,"
he writes. Clarence Thomas tried to claim in his own
confirmation hearings that he had never debated the
decision, but nobody believed him. Being
pro-life is the major position the Republicans have
to support in the politics of the Supreme Court, and
being pro-abortion is the major position the Democrats
have to support on the other side.
What that means is that the
savage any anti-abortion nominee the White House
gives them, and it`s not clear that all Republicans will
support him. The Democrats were able to sink the
Robert Bork to the court by
sheer vilification, and nothing the Republicans did
could get him through.
Nor do Republicans always fight the
justices the Democrats nominate. When President Clinton
seemed about to nominate former liberal Democratic Sen.
George Mitchell to the court, he was endorsed even
before the appointment was made—by Senate Majority
Leader Bob Dole. It`s just as well Mr. Mitchell was
The blunt truth is that, aside from
the anti-abortion forces, there just isn`t any
constituency inside the Republican Party that is so
strongly committed to a serious conservative vision of
the Constitution to guarantee that a Republican
administration will appoint a nominee who shares such a
vision. Who they do appoint is determined by politics.
It`s why even Ronald Reagan gave us
Sandra Day O`Connor (to cater to feminism).
I leave it to the conservative
imagination to think of what would motivate George W.
Bush in his appointments.
Professor Tushnet may be right that
a justice appointed by President Bush would be
"somewhat more conservative" than one named by John
Kerry, but then again he might well be wrong.
The truth is that a Bush appointee
might be far, far to the left of anyone Mr. Kerry could
expect to get through the Senate.
Vote for Mr. Bush if you will, but
don`t bet your ballot on what will happen to the Supreme
Court if you do.
CREATORS SYNDICATE, INC.
Sam Francis [email
him] is a nationally syndicated columnist. A selection
of his columns,
America Extinguished: Mass Immigration And The
Disintegration Of American Culture, is now available
Americans For Immigration Control.
for Sam Francis` website. Click
here to order his monograph,
Ethnopolitics: Immigration, Race, and the American