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No Ballyhooing on New Supreme Court Nominee

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Message Michael Leon
In the summer of 1987, right wingers rejoiced over Ronald Reagan's nomination of Judge Robert Bork to the Supreme Court of the United States.

Bork was hailed as the pure embodiment of the "strict constructionist" school dedicated to interpreting the law and not creating it. And Bork was seen as Reagan's last chance to shape the court and tilt it to the right.

Of-course, as Princeton University constitutional scholar Stephen Macedo and others have amply demonstrated, strict constructionism is no school at all, but rather a results-oriented program of right-wing policy and nihilistic constitutional skepticism, promoted by the likes of the Federalist Society for Law and Pubic Policy Studies -- a fledgling two-year-old organization in 1987, and now a 35,000-member-strong ideological reserve supplying the bulk of President Bush's nominees to the federal court system.

As recounted by Ethan Bronner in his riveting treatment of the Robert Bork confirmation fight (Battle For Justice: How The Bork Nomination Shook America (WW Norton, 1989)), politically savvy Reagan Republicans cautioned the right wing to keep their elation over Bork's ascension down low and to "not ballyhoo it."

The reason for the Republican trepidation then is simple: this strict constructionist ideology is unpopular with the American people, and our society would look very different today were strict constructionism adopted as judicial policymaking over the past 45 years. Civil liberties and rights taken for granted today simply would not exist.

As Senator Ted Kennedy (D-MA) thundered as the time: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, children could not be taught about evolution."

Thanks to Kennedy and an unprecedented mobilization of citizen groups that publicized the constitutional stakes, Bork and his right-wing sentiments came to be seen as cold-blooded and frightening to everyday people -- minorities, women, the working class, racial battle-weary white southerners, civil libertarians -- and the nomination was soundly defeated.

Things have changed since 1987. The Senate is now Republican-controlled, and the Federalist Society is booming and aggressive. And political public relations as a discipline is more refined as practiced by the Bush administration in its numerous disingenuously named campaigns. Bush won't ballyhoo his new Supreme Court nomination; Rove and company will package it and present it to the American people neatly wrapped in apolitical bromides and moderate-sounding intentions.

But the American people are pretty much the same, though arguably even more suspicious of Bush's motives now than they were of Reagan's in 1987.

With the withdrawal of Harriet Miers (bashed as a "disaster" by a vocal Robert Bork), Bush will not betray the right wing again with a lightweight Miers or a wishy-washy conservative like Sandra Day O'Connor. You can expect another Robert Bork or Federalist Society heavyweight like Theodore B. Olson.

Wrote right-wing columnist Cliff May this morning in the National Review Online on the prospective nomination of an Olson-like, Federalist Society intellectual. "I'd be breaking out the cigars and bongo drums if Ted Olsen were the nominee."

I'm sure he will, but this time it will be demanded that louder players like the religious right not ballyhoo it, or at least keep the party indoors and quiet, lest the American people get disturbed by the echoes of Robert Bork threatening their rights and way of life, and demand that Senate Democrats take seriously their constitutional function of advice and consent.

Update. And the nominee is: Judge Samuel A. Alito Jr., aka "Scalito," and proud member of the Federalist Society. Bush described Judge Alito as "scholarly, fair-minded and principled." The religious right ballyhooed rather loudly actually, but the apolitical bromides and moderate-sounding intentions are legion.

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Michael Leon is a writer living in Madison, Wisconsin. His writing has appeared nationally in The Progressive, In These Times, and CounterPunch. He can be reached at maleon64@yahoo.com.
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