The Supreme Court Is Not A Good Enough Reason To Vote For Bush

Does it

make any difference
who wins the presidential

Both major candidates are so

close to each other
on so many major issues—immigration,
trade, even

foreign policy
—that it`s very hard to tell, and many

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
much longer.

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
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
Paul Stevens,

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
conservatives like

Clarence Thomas

Antonin Scalia
have been Republican appointees. But
Mr. Bush`s

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,

he 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

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
Democrats will

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
nomination of

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
never nominated.

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.

That`s exactly why President
Eisenhower gave us Earl Warren (a

for his support in the 1952 GOP convention)

William Brennan
(to pander to the Irish Catholic

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.



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.

Click here
for Sam Francis` website. Click

to order his monograph
Ethnopolitics: Immigration, Race, and the American
Political Future.