by Jayne Lyn Stahl
Despite what the White House might like us to think, nominating a judge to the highest court in the land isn't like guesting on "Deal or No Deal."
This week's decision by the Supreme Court to end the moratorium on the death penalty by striking down a case that challenged the constitutionality of lethal injection should help bring the demographics of the Court into sharper focus.
And, regardless of who the Democratic presidential nominee is, come November, before casting a vote, think about this:
Only 2 of the 9 sitting Supreme Court justices were nominated by a Democratic president, both by Bill Clinton; the remaining 7 justices were nominated by Presidents Ford, Reagan, and Bush. All but 3 of the justices are over 60. Justice John Paul Stevens will turn 88 on Sunday. He was nominated by President Ford; Justice Ruth Bader Ginsburg, a Clinton nominee, is 75.
With this latest decision by the Supremes, we got a sneak preview of the direction in which Chief Justice Roberts, who is a young'un compared with his associates, plans to take the Court given their 7 to 2 ruling against a challenge to lethal injection. Justice Roberts argued that there wasn't sufficient proof that executing someone by a three-tiered protocol violates the Eighth Amendment prohibition against cruel and unusual punishment. But, he didn't suggest how one is supposed to obtain that proof---interview someone after he's been executed? And, this is only the tip of the iceberg.
Over the coming years, the Supremes will have the opportunity to hear more challenges, like whether or not D.C. has the right to ban handguns, whether a woman has the right to control her own reproductive destiny, as well as decide on issues from electronic surveillance, retroactive immunity, what constitutes torture to if you must forfeit your right to litigate against an employer for pay discrimination because you didn't file your lawsuit on time.
Be scared, be very scared, and remember that the one who wrote the strongest opinion of all, on Wednesday, against capital punishment, calling it a "pointless and needless extinction of life," Justice Stevens, is the closest to retirement while his conservative colleagues, Justices Alito, Roberts, and Thomas, are young enough to be his children. Indeed, these Bush nominees to the bench are in their infancy.
Remember, too, that over the next 35 years, the Supremes will decide on issues we care about most, as well as those we can't even imagine. So, given that this President has already nominated more than a third of those sitting on the Court, all lifetime appointments, one shudders to think what his chosen successor will do if given his turn up at bat. given that this executive branch has all but shredded not only the First and Fourth Amendments, but the Eighth Amendment, too.
Odds are, whoever occupies the Oval Office next will get to pick two more Supreme Court justices.
Imagine what this country will be like if six of nine on the bench were appointed by George W. Bush or one whose stated intentions are to follow in Bush's nu-cu-lar footsteps. When we retire a president, in January, the future of the Court, and the country, will be at stake.
If protecting the integrity of the Supreme Court, and the balance of power, by keeping a level ideological playing field, isn't a good enough reason to defeat John McCain then what is?
So, the best argument against a McCain presidency is not the economy, not the war in Iraq, but the Supreme Court.
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