Court Jester

Sen. Patrick Leahy used an event held in his honor during the Democratic convention last week to talk about the importance of the First Amendment.

“With the crew we have in charge right now, we would not be able to ratify the Bill of Rights,” Leahy said on July 27. He noted that after the founding fathers set up the new government, the first thing they did once in power was pass the Bill of Rights to protect the people they were governing.

But the current administration, “who have botched everything, question the patriotism and the honesty of those who dare stand up to use their First Amendment rights” to challenge it, he added.

Then Leahy told those gathered that the man elected president this fall could nominate as many as four Supreme Court justices in the next few years, and that the Senate would vote on whether to approve them. Leahy didn't leave the audience guessing as to which party he hopes is in charge of both the White House and the Senate.

While Leahy chose to talk about the courts, the issue got little attention just about everywhere else. The economy, Iraq, and health care were the main talking points of the week. Democratic nominee John Kerry talked about the need to avoid using the Constitution for political purposes, but didn't mention the courts specifically in his July 29 acceptance speech.

“You would think people would be focused on [the courts], but it's a nuanced argument,” Rep. John Larson of Connecticut told me. “It's a great, provocative issue that needs to be fleshed out more.”

Sen. Tom Carper told me he's not surprised the issue isn't getting more attention. When he ran for governor of Delaware in 1992, “no one ever asked me a single question about my criteria for judges,” despite the fact that Carper could nominate them as the state's executive officer.

“I'm not really surprised that this issue isn't on the front of everybody's minds,” Carper said.

It was on somebody's mind, however. A large billboard ad near the FleetCenter read “THINK! (about the Supreme Court) Kerry's Scary.” The website mentioned on the ad,, is a project of the Committee for Justice. The group is chaired by C. Boyden Gray, who served as President George H.W. Bush's White House counsel and helped push Clarence Thomas's Supreme Court nomination.

Many lawmakers say the court is among the most important issues up for consideration this fall.

“Given what this administration has done both in Congress and the presidency, the courts are now our last hope,” said Rep. Jim McDermott of Washington, noting the court's check-and-balance power. “If [George W.] Bush is elected and guts the court, all hope is lost for everybody.”

One area Democrats are especially concerned about is abortion rights. In 1992, the
court was one vote away from overturning Roe v. Wade. The same is true this year.

Just as importantly, if the election winds up a nail-biter like 2000, it's not inconceivable that the court could step in again and swing the election Bush's way.

Then, of course, there is the issue of civil rights, an area the Bush administration has disregarded repeatedly. At a panel on national security and terrorism on July 28, Rep. John Murtha of Pennsylvania called voting for the Patriot Act the worst vote he's cast in his 12 terms in Congress. “If we lose our liberty, there's nothing worse,” he said.

While Bush will have to win the Senate's support on his Supreme Court nominees, he's routinely ignored its advise-and-consent role on other choices, such as Charles Pickering and Bill Pryor, whom he installed as appellate judges through recess appointments earlier this year. And just last week, with the spotlight safely off him, Bush made 20 recess appointments for executive positions such as chairman of the Federal Trade Commission, no small matter.

Rank-and-file voters, caught up in traditional bread-and-butter issues such as whether they can afford to feed their families and worried about sons and daughters serving in Iraq, aren't likely to give the courts much thought, Larson said. But while the courts may not carry the same sense of urgency, they're just as -- if not more -- important in the long term. The economy will recover and the war will end at some point, but the courts have the ability to make fundamental changes to our system of government, and therefore our way of life. And, like Leahy said, this administration isn't interested in protecting voters from its excesses.

As McDermott told me, “We've got to win the presidency.”

Mary Lynn F. Jones is online editor of The Hill. Her column on Capitol Hill politics runs each week in the online edition of The American Prospect.