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Jewish Journal

Stakes Loom Big in Future of High Court

by James D. Besser

November 11, 2004 | 7:00 pm

The justices of the United States Supreme Court, from left, Associate Justice Antonin Scalia; Associate Justice Ruth Bader Ginsburg; Associate Justice John Paul Stevens; Associate Justice David Hackett Souter; Chief Justice William H. Rehnquist; Associate Justice Clarence Thomas; Associate Justice Sandra Day O'Connor; Associate Justice Stephen G. Breyer; and Associate Justice Anthony M. Kennedy.

The justices of the United States Supreme Court, from left, Associate Justice Antonin Scalia; Associate Justice Ruth Bader Ginsburg; Associate Justice John Paul Stevens; Associate Justice David Hackett Souter; Chief Justice William H. Rehnquist; Associate Justice Clarence Thomas; Associate Justice Sandra Day O'Connor; Associate Justice Stephen G. Breyer; and Associate Justice Anthony M. Kennedy.

The National Council of Jewish Women (NCJW) gets it and so does the Religious Action Center (RAC) of Reform Judaism. Both groups have made careful scrutiny of the Bush administration's judicial nominations a top priority in the past year.

Groups on the religious right get it, as well: Almost nothing President Bush does during his about-to-begin second term will affect the American future as profoundly as his appointments to the courts.

Already, the president has appointed more than 200 conservative federal judges. Now, with Chief Justice William Rehnquist ailing and several other Supreme Court justices talking about retirement, most observers expect two to four high-court openings in the next four years.

It's an issue with enormous importance to the Jewish community, but traditional communal caution may keep Jewish organizations -- with those two exceptions -- on the sidelines. And that could ultimately compound the damage done to key concerns of the Jewish community.

Last week's presidential election represented a political coming of age for the Christian right, which turned out in force to ensure the re-election of Bush and help elect a more conservative Congress. Now, those groups expect payback. And increasingly, what they want most is more conservative judges who share their perspective on the nation's culture wars.

They understand this fundamental truth: While legislation can change day-to-day political realities, the courts -- and the Supreme Court in particular -- change the very fabric of American democracy.

Legislation to implement priorities like public funding for religious education and social services, curbs on abortion and restrictions on homosexual rights is difficult to pass and always involves compromises infuriating to the purists. Legislation, too, can be undone by future Congresses when the political pendulum swings back.

But a transformed federal judiciary can affect policy in a much more powerful and enduring fashion. Rehnquist, appointed by President Richard Nixon in 1971, has influenced American life for 32 years under seven chief executives.

Congress often lurches off in new directions when elections alter the partisan balance. The court sometimes reverses course, but ponderously -- as the Founding Fathers intended.

Conservatives know this, which is why they plan to press their advantage with a president they played a pivotal role in re-electing. And the results could be dramatic.

When lawmakers balked at Bush's sweeping faith-based initiatives, the president simply implemented sweeping programs to funnel government money to private charities through executive action.

Many of those programs are being contested in federal court, where some cases will be heard by the president's conservative appeals court judges. A Supreme Court with a few new Bush appointees could turn those programs into permanent reality for America.

Roe vs. Wade, the 1973 decision legalizing abortion, hangs by a judicial thread. One or two new Bush appointees to the Supreme Court will almost certainly snap it.

The current court, narrowly divided, has moved cautiously in allowing government money to go to parochial schools -- something favored by Orthodox groups, opposed by most other Jewish organizations. Bush appointees could help the court throw that caution to the wind.

Christian groups have limited their activism on behalf of school prayer in recent years because of restrictive high court rulings, but already, there is talk in evangelical circles about new school prayer proposals to take advantage of the expected changes in the court.

Christian conservatives say that the biggest threat to the nation now is gay marriage, and they fully expect a new court -- possibly headed by Justice Clarence Thomas -- to slam the door firmly shut on such partnerships. If they succeed, it will be the nation's first major retreat after decades of progress on civil rights, a troubling development for other minorities.

Hate crime statutes favored by a range of Jewish groups have been under assault from the religious right and could also be in jeopardy.

The conservatives accuse the courts of "judicial activism" -- doing from the bench what Congress and legislatures have been reluctant to do. But that's exactly what they want to do, but from a conservative Christian starting point.

Judicial tyranny, apparently, is in the eyes of the beholder.

Jewish groups have a huge stake in the debate, but their collective voices may be muted as the battle over the judiciary takes a quantum leap in intensity.

Only NCJW and the RAC, with their strong focus on abortion, civil and religious rights, have made the judicial battle a major focus, although several others have weighed in on one or two nominees they considered particularly egregious.

Most other Jewish groups are too worried about their nonprofit status, their politically diverse lay leadership and contributors -- and, most of all, their precious access to the centers of power in Washington.

That reticence will be harder to maintain in the next four years. If Jewish leaders want to play a role in the most sweeping change in American society in generations, they will have to wade into the messy, high-stakes fight over the judiciary.

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