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Bush’s Real Legacy
Whether or not the president succeeds in Iraq or with his aggressive domestic agenda, he may be most remembered for reshaping the judiciary

WEB-EXCLUSIVE COMMENTARY

By Eleanor Clift

Newsweek

Updated: 2:20 p.m. ETJan. 21, 2005

Jan. 21 - Every Friday morning the vast left-wing conspiracy assembles in the office of the Leadership Conference on Civil Rights in downtown Washington to map out strategy and swap rumors about judicial appointments. If the first rule of warfare is to know the enemy, it means figuring out what Bush campaign architect Karl Rove is thinking.

Maybe Rove put it out as disinformation, but what progressives are hearing is that he wants President George W. Bush to nominate Judge J. Harvie Wilkinson, a consistent opponent of affirmative action, to replace the ailing and soon to retire Supreme Court Chief Justice William Rehnquist and to make it a right-wing twofer by elevating Justice Antonin Scalia, by far the most forceful voice of conservatism on the high court, to chief justice. A Supreme Court headed by Scalia would seal Bush’s legacy as a transformational president.

Wade Henderson, the executive director of the LCCR, views Bush “with a mixture of consternation and admiration.” He opposes the president’s relentless push to pack the courts with judges that reflect his ideology, but he’s in awe of the way Bush uses his power. The boldness is breathtaking. “How could we oppose ‘Nino,’ the most beloved conservative,” he asks sarcastically. He knows what the other side is thinking. This is a battle that will shape the courts and the country for generations to come. The left mounts a fierce fight; Scalia and Wilkinson are confirmed; the Democrats get rolled and dissipate what little power they have, and subsequent nominees become a cakewalk. “Our job is to rewrite their calculus,” says Henderson.

It won’t be easy. The fight has broadened beyond the social issues to the corporate interests that are the backbone of the Bush administration. For the first time, the National Association of Manufacturers is throwing its weight behind Bush’s judicial appointments. John Engler, former governor of Michigan and the group’s new head, announced publicly that the NAM would wage a multimillion-dollar campaign to support Bush’s nominees. “It’s a stark example of the quid pro quo of judicial politics,” says Henderson. The business community has a vested interest in issues like tort reform, limiting class action and victims’ rights. But Engler may have overplayed his hand. Major manufacturers like the Big Three auto companies are members of the NAM, and getting identified with anti-abortion activists and other conservative causes invites a backlash. “We’re going to make it very uncomfortable for major corporations,” says Henderson.

It’s unlikely that the progressive community can stop Scalia, but they can raise the temperature of the debate. Democrats have something they didn’t have before--Scalia’s record on the court. His sharp-edged dissents can be intemperate and harsh; he votes with Clarence Thomas 92 percent of the time, and his duck-hunting trip with Vice President Dick Cheney, who had business pending before the court, had the appearance of a conflict of interest. “We have to make a serious run,” says Henderson. “If we don’t challenge him now, we lose our credibility to oppose any subsequent nominees.”

The entry of Engler’s NAM into the debate ups the ante for Henderson and the 185 progressive groups in the LCCR coalition. They range from the usual suspects like the NAACP and women’s pro-choice groups to the not-so-obvious Sierra Club and AARP, which lobbies for senior citizens. Just as social conservatives are promising to put pressure on Democrats from Red States, Henderson says his grass-roots organizers are going into Blue States where there are Republican senators, like Pennsylvania, Maine and Rhode Island. Judiciary Committee chairman Arlen Specter “doesn’t get a free ride,” Henderson says. Rick Santorum, the junior senator from Pennsylvania, won with only 51 percent, and he’s up for re-election in 2006.

Democrats will feel the heat, too, from liberal interest groups. When Senate Minority Leader Harry Reid in an interview on “Meet the Press” favorably compared Scalia to Thomas in weighing which of the two is more qualified, Democratic activists flooded his office with calls and e-mails. Reid is from a Red State, Nevada, and he’s an opponent of abortion rights, which makes liberals uneasy about how far he will go to oppose Bush’s judicial appointments.

There are many things we take for granted, like the 40-hour week, clean air and clean water, that are the result of congressional initiatives to overcome the powers of the state. Over the last two decades, as the courts have become more conservative, judges are moving to undo the laws passed by Congress in the late '60s and early '70s, the heyday of liberalism. The Federalist Society was founded in 1981 with chapters in law schools around the country to promote states’ rights and an anti-federalist outlook. The lawyers and judges groomed by this conservative network want smaller government and relief from regulations on business that favor workers and the environment. There is a wealth of these like-minded jurists for Bush to choose from, and most of them are young, still in their 40s, and well positioned to carry forward Bush’s agenda well beyond the end of his presidency.

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