Replacing O’Connor

by on July 5th, 2005

I’m as uneasy as the next lefty about the damage Supreme Court Justice Sandra Day O’Connor’s likely replacement will cause over the next couple of decades. When George W. Bush forces a Scalia/Thomas clone past the Senate to replace O’Connor, the court will become an even stronger ally in his plan to re-make the country. So I’m all in favor of fighting Bush’s choices with whatever tactics we can muster. An empty seat on the court would be better than a firmer conservative majority.

But still, the liberals’ insistence that Bush should feel obligated to replace O’Connor with another moderate conservative so as not to upset the court’s balance strikes me as misplaced. By that logic, the left should not object later this summer or whenever Bush replaces conservative Chief Justice William Rehnquist with another hard-right conservative. The argument also implies that liberals, too, should appoint moderates if they ever win the presidency again. Bad plan.

O’Connor’s role as the swing vote in frequent 5-4 Supreme Court decisions makes her seat significant, but arguing that the court is supposed to reflect some middling national compromise makes little sense. The Supreme Court has, for almost its entire history, played its assigned political role: shoring up American political institutions, protecting the interests of the more elite classes, and keeping the masses from getting their way through either democratically elected legislatures or direct political action.

The Supreme Court by design is a conservative institution, filled from the beginning with justices appointed by presidents who almost always knew what they were getting. The few periods in American history where the court took a leftward turn stand out in our memory, especially the memory of those of us who grew up in the 1950s and 1960s when it was possible to believe the federal courts’ job was to protect individual rights. But those left-leaning blips were few and far between. Since then the court has resumed its more traditional role as protector of power and reinforcer of the status quo.

The balance on today’s court is not between right and left but between right and center. The court’s so-called liberals are hardly in the mold of Thurgood Marshall and William Brennan, let alone William Douglass. That Sandra Day O’Connor’s status as “moderate conservative” makes her the court’s center illustrates the rightward tilt better than anything.

In May, when the U.S. Senate considered ending filibusters,  I suggested that ending the ability of the minority Democrats to challenge Republican domination could have some advantages along with the obvious dangers. Sure, without the filibuster the Bushies will do even more harm. But the pressure to stick to the middle of the political spectrum — sacrificing those whose needs the conservative-dominated middle will never meet — takes the wind out of efforts to create a more effective progressive or radical politics that understands the difference between compromise and cave-in.

The left should oppose Bush’s appointments using the filibuster and any other method. In the long run, though, what’s needed is a movement to galvanize the largest group of Americans — those who not only don’t vote but don’t see around them any political movement effectively advocating their interests. The fight for a better future isn’t a battle between right and center. Those of us on the left who know a better world is possible shouldn’t act as if putting a moderate conservative on the Supreme Court is as much as we can imagine accomplishing.


See Dennis Fox’s academic and political essays on psychology, law and justice

Dennis Fox