GOP presidential candidate Mitt Romney recently mused about who his likely cabinet picks would be if elected. But he was conveniently tight-lipped about the one institution on which his administration would have the greatest impact — and damage — the Supreme Court.
There are three numbers that tell the colossal danger that a would-be President Romney poses to the Supreme Court. The numbers are the ages of the three justices. Justice Anthony Kennedy is 76. Justice Ruth Bader Ginsburg is 79. Justice Stephen Breyer is 74. Ginsburg and Breyer have been the most consistent and dependable justices to protect and defend civil liberties, civil rights, and economic fairness on the court.
Kennedy is conservative, but not an ideologue. He has at crucial times been the moderating swing vote during his term on the court. President Obama did not appoint Kennedy, Ginsburg or Breyer. But given the ages of the justices, and the past health issues of Ginsburg, if Obama is reelected and if any one of the three justices steps down, he will pick their replacement. His picks almost certainly will be justices who will be moderates that are fully protective of civil rights, civil liberties, and economic fairness.
The justices that Romney will pick will be the exact opposite. This is not speculation. Romney flatly said that the judge that he longed to have on the current court is Robert Bork. Bork’s rabid, fringe, and at times borderline zany views and interpretation of judicial and constitutional law were so repulsive that his nomination to the court by President Reagan in 1987 was virtually DOA during the confirmation hearings.
That has made Bork even more appealing to Romney. He hired Bork to tell him who he should pick to replace Ginsburg, Breyer or Kennedy if they retire. The fine balance that Kennedy and Chief Justice John Roberts momentarily brought back to court during the court’s recent health care ruling will be instantly obliterated.
While the court has gotten some applause for moderate rulings on the Affordable Care Act (ACA) — and scrapping draconian sentences for juvenile offenders — that did not cast the court as moderate or even-handed on the crucial issues involving rights and liberties.
In the first five years under Roberts, the court issued conservative decisions in nearly 60 percent of the cases. In the term that ended the year after Obama took office in 2009, the percentage of conservative decisions shot up to 65 percent. This is the largest number of overt conservative political decisions in over a half-century.
The intense fire that Roberts drew from Romney and conservatives for casting the swing vote to uphold the ACA was a stern warning that justices are expected to toe a rigid, conservative line on the court. And any deviation from that will not be tolerated. This message was for Roberts.
Romney punctuated it by taking a big swipe at Roberts saying that he would not nominate someone to the court that would likely rule on an issue that ran counter to Romney’s position and views.
Bork would have no fear that as a justice he would ever be out of lockstep with Romney on the compelling issues. A Bork ideologically cloned judge on the High Court would believe that the assault on racial discrimination poses a “dilemma.” He or she would rail against the politics of sex, calling it a “radical feminist’s assault on American culture.”
He or she would be apoplectic that the Supreme Court is an agent of modern liberalism. He or she would see religious trouble in not upholding school prayer in public schools. He or she would make a strong case for censorship even to the point of loudly proclaiming that America’s only hope is “perhaps in administering censorship of the vilest aspects of our popular culture.”
He or she would enthusiastically agree that once homosexuality is defined as a constitutional right, there is nothing the states can do about it, nothing the people can do about it. These are all direct quotes from Bork’s talks and writings.
As a GOP Massachusetts governor in a rock solid Democratic state, Romney walked a thin tightrope. He had almost no chance of packing the benches in the state with his brand of tough, strict constructionist judges. His picks were relatively moderate and diverse.
But Romney gave two strong hints that would not be the case with the Supreme Court if he had unchecked authority to appoint whom he really wanted to the bench. He bluntly said that his pick for a spot on the Massachusetts Supreme Court would be a judge who had a “strict constructionist, judicial philosophy.”
The second hint was his appointment of Christopher Moore, an arch conservative, to chair his handpicked Judicial Nominating Commission. Moore’s job was to try and damp down the number of presumed liberal activist judges on Massachusetts state courts.
As President, Romney would have free rein to do just that. With Bork’s help, he poses the greatest danger to the Supreme Court.
Earl Ofari Hutchinson is an author and political analyst.