I stayed mostly silent during the John Roberts nomination for the same reason he breezed through his confirmation (78 yes to 22 no): there was simply not much to object to. Yes, ideologically it appears that Roberts is likely very far away from me -- his wife is a known anti-abortion activist, he's appeared to argue (as a lawyer) against basic civil rights protection for women and minorities. But he's done nothing illegal, or even outside of the mainstream, and he has, by all accounts, an impeccable, detail-oriented, tireless legal mind. Apart from his ideology -- he's clearly a staunch conservative in a slightly-right-of-moderate (as measured by the ideology of the general populace) range, and has behaved so -- there's little about Roberts to which anyone could object. He has had only two years' experience as a judge, but that's hardly unprecedented, and his long career as a lawyer in public and private service counters a lack of judicial experience, or so his staunch supporters tell us. He refused to answer many of the questions presented him at his hearings, and he danced a lyric legalese ballet around most of the rest of them, but he was very forthcoming about his support for a constitutional right to privacy (unlike Scalia and Thomas, in whose mold the Radical Right had hoped Roberts would be cast). The by-the-books, precedent-is-gold, law-before-ideology jurist he presented himself to be, considered with his conservative leanings, makes him a likely replacement for Justice Rehnquist. In the end, conservative though he may be, and despite his clearly robot-crazy, spice-riddled blue eyes, how could we expect to block such a clearly intelligent, qualified candidate?
Bush's current nominee to replace O'Connor, Harriet Miers, is a bit of a different story (at least as far as qualifications go), but one which will likely end the same. There will be (and already has been) much hay made of her lack of experience. While many Supreme Court justices have not had prior judicial experience, including, most recently, Rehnquist and Lewis Powell, most of those "inexperienced" Justices had held public office or had some long history of public service. Miers has served primarily in the private sector, or in un-elected public posts (as advisor and counsel to GWB throughout his political career). More, hopefully, will be made of her close personal relationship to a president whose history of cronyism is already (with three years left) legendary -- by all reports her loyalty to Bush is fearsome, and she's been heard to call him "the most brilliant man she's ever met." But, apart from her employment history and a reputation for drinking the Bushie kool-aid, we know very little about her. We can assume she's conservative, at least in the Bush administration sense (which does not include fiscal conservatism). We can infer, from the speech she gave to accept her nomination, that she's at least a nominal Originalist. But she's written no briefs, no opinions -- by some reports she's never been published in any peer journal at all.
Some reports are trickling out that she may have been involved in some shady dealing while in private practice, that she's in the pockets of corporate America (really? how shocking!), and she's been pretty well outed as a religious zealot and an opponent of women's reproductive rights (though there's not enough concrete evidence in either category to please the religious Right). But she's unlikely, like Roberts, to answer any specific questions during confirmation, and by the time she's confirmed (because we'll have no legitimate reason to block her beyond "we've got a bad feeling about this"), the only person who'll know her legal mind will be George Bush. If reports of her loyalty are not exaggerated, it will be as if Bush had enshrined himself as a lifetime member of the highest court.
And that's his legacy. That's his contribution to history. Beyond 9/11, which he constantly trots out to bolster his sagging support, and whose immediate international goodwill he so carelessly squandered within a year afterward. Beyond Afghanistan, which he abandoned just shy of real democratic success, or Iraq, which he has condemned to decades of ethnic and religious civil unrest, and into which he has and will continue to pour a significant portion of our economy and military lives, Bush has done what we all feared he would do, what we campaigned so hard against in 2004, and what will haunt the American political landscape for a generation, at least: he has (or soon will, at least) shifted the Supreme Court significantly to the Right. Not in the overt, bible-thumping manner the ethnophobic, xenophobic, homophobic, religious zealots who tipped the election in his favor in 2004 would have liked (expect to hear a great deal of wailing and gnashing of teeth from those folks over the next few months -- it has already started), but rather in a more covert, long-term, anti-progressive, pro-religious-establishment manner.
See, I don't expect the Roberts court, the new Bush court, to boldly overturn Roe v. Wade. I don't expect the Roberts court to boldly do anything. What I expect, based upon Bush's continual repeating that the court should know its "place," is a court which excercises a large, bland, conservative brand of what they will call "judicial restraint," keeping their noses out of conservative legislative affairs as much as possible. They will refuse to hear suits against conservative legislation at a state and federal level (except for a few truly aggregious examples, which will help them maintain a veneer of objectivity), they will look the other way as federal money is funnelled to religious groups, and they, thanks to aggressive and constant right-wing litigation, will have the chance to strike down or at least curb truly progressive legislation. This simple approach, combined with an ongoing religious-conservative movement at the state and federal legislative level, will force the progressive movement in this country into a pure-defense mode (a mode toward which we are already sliding) -- forcing us to focus all of our energy and resources simply on defendng those rights we currently have (or at least believe we have), and leaving us nothing with which to push civil rights and social justice forward. Little by little our civil rights will be eroded, as we win a few battles to successfully maintain the status quo, but still lose a battle here and a battle there. The Republican machine has not made its mark on the past decade by making bold, wide-reaching moves -- bold moves, like gutting social security, are met with public outcry, and seldom make good. The Right's most powerful achievements have been covert, have been baby-steps: cutting funding for environmental initiatives rather than overturning them, pushing-through deceptively named bills (the Patriot act, the Healthy Skies initiative), apppointing industry insiders to head the SEC, the FDA, the FCC, chipping away at social protections and corporate regulations, all while chatting-up a "Culture of Life" and a "Pro-Family America." It's like Albert Brooks said in Broadcast News: "What do you think the Devil is going to look like if he's around? Nobody is going to be taken in if he has a long, red, pointy tail. No ... He will look attractive and he will be nice and helpful and he will get a job where he influences a great God-fearing nation and he will never do an evil thing... he will just bit by little bit lower standards where they are important. Just coax along flash over substance... Just a tiny bit..."
And what did we expect? I'm not a cynic by nature, but I feel the battle for the Court is already over, however many emails I send or online petitions I sign or rallies I attend or representatives I write. It was over on November 5, 2004. This is what we on the Left warned America would come of the Bush presidency: a Supreme Court steeped in religious fanatacism and/or insidious mediocrity. And the American people said, loudly, resoundingly, "we don't care."
So I shrug my shoulders. Harriet Myers is what America gets to reap, along with a preposterous federal deficit and a new Vietnam, from what it sort-of sowed in 2000, and what it planted again in 2004, when we should have known better. Now all those of us who did know better can do is look to 2006 and 2008, and hope with all hope that Justice Stevens (85 years old) remains robust and healthy, at least until we can figure out a way to fix this mess.