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The 2008 Election and the Supreme Court

  Law Center  -   POSTED: 2007/07/04 18:29

President Bush's promise to change the makeup of the Supreme Court was one of his most reliable applause lines, as candidate and as president. It energized conservative activists like few other issues, kept them going in the face of other disappointments, kept them loyal and focused on the long view. As the 2008 campaign heats up, the question naturally arises: Can the left mobilize as effectively when it comes to the court and judicial appointments in general?

There is no doubt about the unhappiness of liberals with the current court, which now bears Mr. Bush's unmistakable imprint. They were reeling last week as the court finished up its first full term with Mr. Bush's appointees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. It was a session marked by a sharp turn to the right in a series of 5-to-4 decisions, from upholding a federal ban on a type of abortion to limiting school districts' ability to use racially conscious criteria to achieve or maintain integration.

Democrats on Capitol Hill and on the presidential campaign trail were furious, especially, some said, because of Mr. Roberts' promises of humility and respect for precedent, delivered repeatedly when he sought confirmation from the Senate. "Given what he said to us," said Senator Charles E. Schumer, the New York Democrat and a member of the Judiciary Committee, "my Democratic colleagues and I would never have envisioned the string of decisions that he issued recently."

"He kept stressing modesty, stare decisis, not over-reaching, giving a large amount of weight to precedent, and now he sort of just flicks it off with the back of his hand," said Mr. Schumer, who voted against Mr. Roberts. "People are just shocked."

Senator Patrick Leahy, the Vermont Democrat who is chairman of the Judiciary Committee, and who voted for Mr. Roberts' confirmation, was equally unhappy. "I am extraordinarily disappointed when I find that, in almost a cavalier way, they've thrown aside Brown vs. the Board the Education," Mr. Leahy said on NBC's "Meet the Press." (That is a characterization that Mr. Roberts, and others, would no doubt dispute.)

But venting only goes so far. People for the American Way, the liberal advocacy group, launched a fund-raising drive this week with an e-mail message sent to 400,000 core activists. "Only you and I stand between the new Supreme Court and the continued chiseling away at the rights and freedoms we Americans hold dear," wrote Norman Lear, one of the founders of the group.

Promising to match every dollar contributed, and to organize around next year's Senate and Presidential campaigns, Mr. Lear concluded, "Together we can take back the court."

Liberals have been warning of the dangers of a Bush court since his 2000 campaign against Al Gore, but it was never an easy issue to drive home, even among people who support much of the progressive agenda, analysts say.

Celinda Lake, a Democratic pollster who has studied public attitudes toward the court for Planned Parenthood and other groups, said it takes a long time to penetrate the public's consciousness about the importance of the nine justices.

"They don't know much about the court, they don't understand lifetime appointments, they think each president can have an impact," she added.

Mark Mellman, another Democratic pollster, said that in the past, "people had some confidence that the court was not going to change the way the country did business in dramatic ways."

In other words, liberals were often warning about potential dangers to their agenda from a changing Supreme Court. The issue was not a hypothetical for conservatives, who felt devastated, over the years, by decisions from previous courts, most notably Roe v. Wade, the 1973 case declaring a constitutional right to abortion.

Now, some Democrats and their allies say they are hearing hypothetical worries turn to outrage, and not just in the Democratic cloakroom of the Senate. "The right has always been energized on this issue," said Mr. Schumer. "The recent decisions have now energized the left."

Democratic presidential campaigns quickly weighed in, and the issue is expected to be raised in several Senate races. A prime example is Maine, which has a centrist Republican up for re-election next year, Senator Susan Collins, who voted for both Mr. Alito and Mr. Roberts.

Carol Andrews, communications director for the Maine Democratic Party, foreshadowed the fight to come, saying Ms. Collins' support for Mr. Alito, in particular, "places her squarely in lockstep with ultraconservatives, and far to the right of the center she claims to inhabit."

Steve Abbott, Ms. Collins's chief of staff, countered that the senator takes her responsibilities to advise and consent very seriously, but has no litmus test for judicial confirmations.

Ralph Neas, president of People for the American Way, said he believes that public attitudes toward the court are "at a tipping point." He said that the cumulative impact of the court's decisions will make it easier to make the case that "you have a court radically to the right of the American people."

Ms. Lake said she could envision an argument aimed at women in the presidential campaign — "that there's a pattern of decisions out here that are out of touch with women's lives, from pay equity to personal decision-making on abortions," she said. "It could be very powerful."

In the meantime, the activist and fund-raising networks are beginning to hum.

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