As positive and progressive as are the recent Supreme Court
decisions in Lawrence v. Texas and Grutter v. Bollinger, the thin
margin of victory in these rulings underscores the need to avoid
extreme right-wing nominees who have visions of the Constitution
that is narrow, totalitarian and overtly political.
Civil rights activists who have been fighting for the equal
protection of gays and lesbians and ensuring diversity in college
admissions and business hiring practices are cheering the Supreme
Court decisions. But they’d best not get too comfortable.
Conservative judicial groups such as the Center for Individual
Rights and Focus on The Family argue that the Supreme Court is
perpetuating an entrenched system of racial victimology and taking
sides in America’s ongoing “culture wars.” And,
with the Republicans ruling the Senate, it is vitally important
that the Democrats do not become complacent in this current
victory.
Justice Antonin Scalia serves as a perfect example of the type
of justice these conservative groups are supporting. In his dissent
to Lawrence v. Texas, Scalia derided the majority for embracing the
“homosexual agenda” and creating “a massive
disruption of the current social order.” Such strong words
should not be taken lightly.
Scalia believes that by extending a basic right of privacy to
people of differing sexual orientations, the Court has shaken the
“social order.” However, this raises the question of
what “social order” Scalia is referring because, as
Newsweek columnist Anna Quindlen correctly notes, “gay people
are in all walks of life, including the church and the
Congress.” Scalia essentially argued that the majority
opinion was wrong because it attempted to answer a political
question and take sides in what can be seen as a cultural
issue.
However, Scalia’s statements regarding the political and
cultural contexts of gay rights proves that he is guilty of
politicizing the bench. His interpretation of the Constitution is
completely divorced from any common sense or reasonable reading.
Scalia does not see how restrictions on the rights of various
groups run counter to the guarantees of the Constitution, nor does
he understand the spirit of the Constitution. Rather, he is
handicapped by a narrow, outdated interpretation ““ and his
personal abhorrence for homosexuality.
Furthermore, in questioning the overturning of the 1986 Bowers
v. Hardwick precedent, which had upheld sodomy laws, Scalia fails
to consider the evolution of society. I shudder to think how Scalia
would have ruled, or reacted, if he was a justice when cases
concerning desegregation and the separation of church and state
were the main issues of the day. After all, judges who supported
these decisions were contemporarily vilified for not reading the
Constitution “strictly” enough.
Why are Scalia’s views so important? After all, Scalia is
only one judge. But Scalia’s interpretation of the
Constitution and, to a lesser extent, that of Clarence Thomas and
William Rehnquist is supported by many of the conservatives who
control the Senate and those who advise President Bush.
The stereotype of the ultra-conservative is a person who holds
that property rights should allow major corporations to pollute the
earth, yet believes abortion must be severely restricted. While not
every conservative believes their own brand of morality should be
legislated, this stereotype falls eerily close to the mold of
Scalia and Thomas ““ and many of Bush’s judicial
nominees, such as 9th U.S. Circuit Judge Carolyn Kuhl.
This outlook is a minority vision. Polls show that most
Americans oppose overturning strong precedents like Roe v. Wade and
believe that businesses should be required to conform to basic
environmental regulations. Thus, many of the nominees that Bush
supports are dangerous, out of step with the American public, and
are taking a very narrow view of the Constitution.
Bush’s recent nominees to federal courts illustrate his
penchant for extreme justice. The nominees William Pryor, who
favors repealing the 1965 Voting Rights Act and displaying the Ten
Commandments at courthouses, and ardent abortion rights opponent
Miguel Estrada, are both clear examples of this.
The consequences of the approval of such nominations would be
severe.
If Bush continues to push nominees that are out of sync with
modern society and precedents, the Democrats should not hesitate to
block his nominations. After all, Republicans did quite frequently
during Bill Clinton’s term, voting to reject Judge Ronnie
White and refusing to hear dozens of other nominees. While
Republicans hold a majority in the Senate, Democrats can and must
filibuster and rally voters against judicial extremism.
Is this just another form of politicizing the judicial process?
Of course. The fact is, politicians appoint the judges. Thus, it
will take politics to ensure that the best and most representative
justices are appointed. The appointment process may be political,
but the judges themselves need not be.
Certainly, the majority of people are frightened by the likes of
Scalia and Pryor. It is tragic that an institution as revered as
the federal judiciary must be used in such a blatantly political
manner, but Bush’s nominees leave no choice.
Bhaskar is a third-year political science student. Contact
him at sbhaskar@media.ucla.edu.