DANGEROUS TIMES AHEAD AFTER ELECTION 2002:
Despite the Nation's Deep Divisions and Bush v. Gore, The President Plans On Filling The Courts With Right Wing Judges

By JOHN W. DEAN
Friday, Nov. 08, 2002

The headlines and accompanying stories two days after the election tell the tale: The Los Angeles Times led with "Bush Gets Credit, Clout for Leading GOP Sweep." Meanwhile, The Wall Street Journal proclaimed "GOP Sweep Gives A Boost to Bush - and Business." And The New York Times reported that "Victorious Republicans Preparing A Drive For Bush Agenda And Judgeship Nominees"

Each of these leading news journals reports that the Bush Administration will soon make a effort to pack the federal courts with socially, economically and politically conservative judges. Worse, these judges will be the type who view positions on the judiciary as a prize opportunity to make their philosophy the law of the land.

The Bush-Cheney White House believes it has been reborn. In truth, Election 2002 has only given the GOP technical control. But that is all this White House believes they need. So does much of the Republican news media.

The Administration Tried to Push Judges Without A Mandate Earlier, Too

It has been known ever since the early months of the Bush-Cheney administration that the fact they do not even have a majority of public support is, in their view, irrelevant. They have the power, and that's all that counts.

Recall that the Republicans lack a majority of popular support (Gore-Lieberman had a half-million vote plurality over Bush-Cheney), and were forced to gain control of the Senate by using Vice President Cheney's tie-breaking vote. Nevertheless, following the 2000 presidential election the Bush-Cheney presidency proceeded as if they had won office by acclamation.

The Bush-Cheney White House soon told the American Bar Association committee that has been assisting in the selection of federal judges since the Eisenhower administration to get lost. Without ABA assistance, the White House quickly rolled out its initial gaggle of conservative judicial nominees.

But before the Bush-Cheney team really got going, Vermont Republican Senator Jim Jeffords decided he had seen enough to make his decision. In late May 2001, he bolted from the GOP, declaring himself an Independent who was prepared to vote with the Democrats to give them control of the Senate.

With Democrats suddenly back in control of the Senate, the Bush-Cheney White House was forced to retreat, and to work with Congress to develop a legislative program. Yet they continued to send hard right judicial nominees to the Senate, simply stacking them on the Senate's doorstep for hoped-for confirmations.

For the Bush Administration, War Is A Political Strategy As Well

September 11th sent Bush's approval ratings into the stratosphere, with some polls giving him a ninety percent approval. Bush's Dick Morris, Karl Rove, had found political gold: George W. Bush - war president. Rove advised the president (and everyone else) to start talking war. They did, and it buried every other issue.

War presidents automatically win public approval. When Rove ran out of Taliban, he substituted Saddam Hussein. Bush's approval has remained at about sixty percent. Americans will be at war as long as Bush is in office - whether the war is against Iraq, or is the indefinite "war on terrorism."

Without war talk, the White House might have been stymied by a Senate controlled by Democrats, and Democrats threatening to take control of the House as well. Try to imagine a Bush Administration without September 11, and it will become clear how thoroughly war has taken over the agenda.

The November 2002 Election Was Not A Bush-Cheney Referendum

Rove also got his boss to take another low risk, high reward effort to get control of the Congress: Take the bully pulpit, and presidential road show, on the campaign trail. Try to transfer your own solid popularity to Republican candidates.

It worked. Bush raised a staggering $140 million for the midterm elections, and by barnstorming key races in the weeks before the election, he made a difference.

But what difference was it, exactly? The difference was that the Republicans now have technical control of Congress It was not that the Bush-Cheney presidency won a new mandate to replace the one the Administration lacked in the 2000 election. The public won't weigh in on the Presidency again until 2004 - and it did not view this intermediate election as a referendum on the Presidency.

Notwithstanding the spin to the contrary, the nation has not just held a plebiscite on the Bush-Cheney presidency. Polls show exactly the opposite.

On November 4 of this year, the day before the election, the Gallup organization asked voters if their vote for a local candidate would (a) "be made in order to send a message you SUPPORT George W. Bush," (b) "be made in order to send a message that your OPPOSE George W. Bush," or (c) "will you NOT be sending a message about George W. Bush with your vote?"

Thirty-five percent were sending a message of support, and eighteen percent were sending a message of opposition. However, the bulk of the voters, forty-five percent, said they were not sending any message to Bush whatsoever.

With only a third of the voters sending a message of support, the 2002 midterm is hardily a national referendum on Bush. Interesting, even many of those voters who contribute to Bush's high popularity rating plainly had no intention of weighing in on him in this election; if they had, Gallup's number of voters sending a positive message on Bush would have been much higher.

A Nation Still Divided - But Judicial Nominees of A Single Philosophy

The margin of the 2002 midterm vote was so thin it says exactly the same thing to the nation that voters said in 2000. As Los Angeles Times political analyst Ron Brownstein notes: "However the final races sort out, it appears that the Republican advance Tuesday wasn't large enough to suggest that they have decisively broken out of the 50-50 divide that has defined American politics for the last half-decade."

We are a divided nation. And when all of the minority parties are added into the equation, the Republicans - particularly the right-wing of the party - remain in the minority. Nevertheless, Bush's hard right core constituency wants more than anything else to pack the federal courts with those who share their thinking, and are willing to impose it through the court system.

These judges are the most inappropriate conceivable in these times: They are uniform in perspective and activist in imprinting that perspective on the law.

To keep his hard right constituency happy, Bush is scouring the legal community for conservative judicial appointees. I promise, you've seen nothing so far: Nominees to come will be, if anything, far more objectionable than those already considered.

Unfortunately for everyone, this is a very dangerous, short-sighted political game.

Alexis de Tocqueville, considered by many both on the right and the left to be a perceptive and wise a commentator on American democracy, long ago warned of the problems facing any majority. To make the point, he called it the tyranny of the majority.

"My greatest complaint against democratic government as organized in the United States," de Tocqueville writes in Democracy In America, ". . . is not the extreme freedom reigning there but the shortage of guarantees against tyranny." (Quotation from Mayer transl.)

The French political observer and thinker noted that when legislative, executive, and judicial branches think differently, tyranny is checked. Yet conservative Republicans currently seek to impose their philosophy by, in fact, controlling all branches: Not content to dominate the executive and legislative branches, they will make their bid for the judiciary, as well.

But when a majority can control all branches, de Tocqueville explained, there is a danger: "If ever freedom is lost in America, that will be due to the omnipotence of the majority driving the minority to desperation and forcing them to appeal to physical force."

This concern was not new to de Tocqueville; rather he drew from the thoughts of founder James Madison. Madison explained in Federalist No. 51 why a majority must be checked by the minority: "In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly said to reign as in a state of nature."

For this reason, the system was designed with checks and balances. Today, their remains but one possible check on Bush effort to pack the judiciary (or force other unacceptable programs through Congress). This last check is the Democrats' final chance to keep control of at least one branch.

Will Democrats Employ The Only Check On The Bush-Cheney Administration?

Before Senator Jeffords bolted and gave the Democrats control of the Senate, the Democrats showed great reluctance to use this last remaining check: the filibuster. Former House Speaker Newt Gingrich surmised, reflecting on the return of Republican control, that Democrats simply can't keep saying "no." But now Democrats may have to learn to do just that.

Packing the judiciary is going to become a truly high-stakes game when one or more of the aging conservative Supreme Court justices step down. Never has that been more likely to happen than during the next year. It will occur long before the presidential race, so the argument can't be used that filling the high court must be left to the next president.

Bush aides have said that given the changed situation, the White House will resubmit the rejected nominations of Charles Pickering of Mississippi and Priscilla Owen of Texas. Both Pickering and Owen were earlier rejected for seats on the United States Court of Appeals by the then-Democratically-controlled Senate.

The GOP is still far short of a 60-vote, filibuster-proof majority in favor of its nominations. Will Democrats use the filibuster to prevent Bush from packing the judiciary (and for other conservative initiatives)?

I don't know. I do know if they don't, we will have a tyranny of a technical majority, which is - in truth - a minority that has the reins of government in its hands.


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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