Judging the judges

As a newly arrived Washington correspondent a few years ago, I made a call to the late Alistair Cooke, doyen and paragon of the London-based Guardian newspaper’s reporters from the United States.

The hardest thing for British people to understand about the American political system, he said, was how important the judges and courts were within it.

That conversation came back to mind this week because George W Bush crossed the Atlantic and left behind a Washington in rare ferment. Yet the subject that has galvanised the US capital and that will be uppermost in the president’s concerns during his trip to the G8 summit will not be global poverty or climate change, nor even Iraq.

The resignation of Justice Sandra Day O’Connor detonated vast amounts of media speculation.
Yet the retirement of the US Supreme Court’s first woman justice is not merely a major Washington story. It is also potentially a seismic national political event — at least as important, in its own context, as the election of a president.

The nine-justice court is so central to the US system of government that any new presidential nomination to it would be important at any time — and, with a gap of 11 years since the last one, a generation of would-be justices now awaits the call. But Justice O’Connor’s position as the swing voter on many crucial decisions in the past 15 years gives added weight to this moment. It means that the lives of millions of Americans will be shaped for years by her successor’s stance on issues such as abortion, race and religion.

That is why so many on the right see this as an immense opportunity and why so many on the left see it, with equal fervour, as a moment of direst threat. For it has been an open secret ever since Bush became president (thanks in no small part to one of Justice O’Connor’s most important swing votes) that many Republican lobbies have no higher priority than to reshape the court under Antonin Scalia in an aggressively conservative mould—with a view to dismantling the role federal government has played in US life since at least the time of the New Deal. Without an election to face, Bush may share that view.

Whether this happens may be another matter. Even with the Republicans in charge of both the executive and legislative branches of government, constraints exist. Most Americans are decent and pragmatic people, offended by the right’s culture wars, as opinion polls consistently show and as the Terry Schiavo case recently reminded them.

So Republican candidates in next year’s mid-term elections may be uneasy about the effect of nominating a cultural-warrior judge. Bush will also be under pressure to nominate another woman; he did not get where he is today by ignoring the political middle ground, where O’Connor’s cautious pragmatism and resistance to ideological jurisprudence played so well.

Fifty-million dollars, it is said, will be spent in the battle for Justice O’Connor’s seat. With two other justices in their 80s and a third a cancer sufferer, the process may soon be repeated with equal intensity, at even greater expense and with still more epochal consequences for the US.—Â

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