GOP Presidential contender Mitt Romney recently mused publicly about his likely cabinet picks if elected.
Conveniently, he was tight-lipped about the one institution where his administration would have the greatest impact—and damage—namely, the Supreme Court. Three numbers tell the colossal peril that a would-be President Romney poses to the Supreme Court. They 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. At crucial times he has been the moderating swing vote during his term on the court. Kennedy, Ginsburg, and Breyer were not appointed by President Obama. But given the ages of the justices, and the past health issues of Ginsburg, he will pick their replacement if re-elected if any step down. His choices almost certainly will be justices who will be moderates that are fully protective of civil rights, civil liberties, and economic fairness.
The Ugly Option
The justices Romney would select would be the exact opposite. This is not speculation. Romney flatly said 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 made Bork even more appealing to Romney. He has hired Bork to tell him whom he should pick to replace Ginsburg, Breyer or Kennedy if they retire. The fine balance that Kennedy Chief Justice John Roberts (in his pro-Obama administration ruling on the healthcare reform law) momentarily have brought back to court would be instantly obliterated.
The court has gotten some applause for moderate rulings on the Affordable Care Act, and for scrapping draconian sentences for juvenile offenders that did not type the court as moderate, and evenhanded on the crucial issues involving rights and liberties. In the first five years under the watch of 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 Affordable Care Act was a stern warning that justices are expected to tow a rigid, conservative line on the court. Any deviation from that will not be tolerated. This message was for Roberts. Romney punctuated it by taking a big swipe at Roberts, saying he would not nominate someone to the court who would likely rule on an issue that ran counter to Romney’s position and views.
They Look Like Twins
Bork would have no fear that as a justice he would ever be out of lock step 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 trouble in religion 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 when 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. He is a frequent political commentator on MSNBC and a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the author of “How Obama Governed: The Year of Crisis and Challenge.” He is an associate editor of New America Media. He is the host of the weekly Hutchinson Report on KPFK-Radio and the Pacifica Network.
Follow Earl Ofari Hutchinson on Twitter: http://twitter.com/earlhutchinson
