Let’s Have a Real Debate About the Court

Choosing a Supreme Court justice has become a deplorably dishonest process that hides ideological disputes behind petty and often personal matters. Nominees pretend to have no opinion about controversial issues such as abortion, when everyone listening knows they certainly do. Politicians pretend to worry about nothing except judicial qualifications, temperament and balance.

It is a summer exercise that often descends into ugly insinuations and cheap shots while evading real questions. But perhaps this time will be slightly different, as the president nominates — and the Senate considers — a replacement for retiring Justice John Paul Stevens. For once, the nation may confront fundamental differences with a degree of candor.

Influential pundits on the right are advising the Senate Republican leadership to mount a sustained opposition to virtually any nominee chosen by President Barack Obama. The time has come, they argue, for a partisan showdown on the most basic issues that divide the country.

“I think Republicans should want to have a serious debate on the Constitution,” says William Kristol, editor of The Weekly Standard, Fox News commentator and Republican strategist. “I’m struck when you listen to the tea party activists. They often talk about, ‘We need to be constitutionalists, we need to be constitutional conservatives.’ ”

The aim of such a debate would not be to influence the court, since the Senate’s majority seems certain to overcome opposition to an Obama nominee — as it did when Sonia Sotomayor ascended to the highest bench last year.

The purpose would be to drive votes for Republicans in the upcoming midterm election — because Kristol and others in his camp plan to introduce health care reform and other legislative controversies into the nomination debate as “constitutional issues.”

What exactly do they mean by “constitutional”? On the increasingly powerful fringes of the Republican right, a category that includes some tea party activists, the Constitution is interpreted as prohibiting every social and political advance since before the Civil War. They would outlaw the Federal Reserve System, the progressive income tax, Social Security, Medicare, environmental protection, consumer regulation and every other important federal initiative of the past century.

Targets of the “constitutional conservatives” would certainly include civil rights legislation that guarantees equal protection under law to minorities and women, with right-wing zealots, especially in the South, speaking openly again about state’s rights — the old code for racist oppression and segregation.

A serious debate would highlight this extremism, which Democrats, independents and Republicans alike have rejected for most of the past five decades. (Retiring Justice Stevens was a Republican nominee, placed on the court by Gerald Ford and confirmed unanimously.)

A serious debate might also reveal the incoherence of a right-wing jurisprudence that deprives government of the power to address basic national problems even as it empowers the president in wartime with absolute and monarchical authority.

In a recent memo on the upcoming Supreme Court battle, political theorist William Galston, pollster Stan Greenberg and demographic analyst Ruy Teixeira urge their fellow Democrats not to back away from a constitutional debate. They warn that the judicial agenda of the Republican right would undermine not only Social Security and Medicare but the separation of church and state and the very rule of law in America.

“Democrats can — and must — respond firmly and categorically to this extremist philosophy,” write the three strategists. “They must respond by saying that the Democratic Party proudly upholds the traditional American view of the Constitution — the view of the founding fathers of this country — George Washington, Thomas Jefferson, Benjamin Franklin, Alexander Hamilton and John Adams.”

Upheld by Republicans as well, from Abraham Lincoln and Theodore Roosevelt to Richard Nixon and Ronald Reagan, those principles encompass religious freedom for everyone regardless of sect or creed; the capacity of elected representatives to legislate for the common good; and the protection of individual liberty within a framework of enforceable laws.

So yes, let the debate rip — and let the exposure of the radicalism of the right begin.

Joe Conason writes for The New York Observer.

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