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Supreme Court Politics

October 2, 2000 at 12:00 AM EDT


RAY SUAREZ: For more on what’s at stake for the Supreme Court this presidential campaign we turn to two congressional spokesmen for the Bush and Gore campaigns: Republican Asa Hutchinson of Arkansas and Democrat Barney Frank of Massachusetts. They are both on the House Judiciary Committee.

Joining them are two Supreme Court watchers: Stuart Taylor, legal affairs correspondent for National Journal and Newsweek, and Anthony Lewis, a columnist with The New York Times. Representative Hutchinson, this is one of the longest periods of the stable membership of the court in American history. These nine men and women have been there for six years with no changes.

What should voters be thinking about this fall, as they consider who should be the next president and how that may change the court?

REP. ASA HUTCHINSON: Well, I think first they have to realize how significantly it could change the court — in the last term, I think there were 70 decisions, one-third of those were a 5-4 decision on a whole host of issues, from partial birth abortion to the case involving the Boy Scouts — 5-4 decisions.

And so if the next president would appoint one, two or three, then it could be a significant change in the tilt, the balance of the court. Governor Bush has indicated that he does not have any litmus test for those; he wants to make sure that they are well qualified, reflect his general philosophy.

If you look at his record in Texas, his appointees represent all walks of life. 50 percent of them were women and minorities. And so I think that’s how he would approach appointees to the United States Supreme Court.

RAY SUAREZ: And Congressman Frank, let me move to you, what would you ask voters to keep in mind about the makeup of the Supreme Court and who the next president will be?

REP. BARNEY FRANK: That the Supreme Court is closely balanced on some very important issues. I think if Al Gore wins, the right of a woman to decide whether or not to have an abortion if she’s pregnant will remain a constitutional right.

It is overwhelmingly likely if George Bush wins, given his strong opposition to legalized abortion and the nature of the court and the fact that it’s closely balanced, that Roe versus Wade would either be overturned or so substantially diminished as to give women very little protection.

The other area that very much bothers me is the current five-member majority, which George Bush would strengthen, because he’s admired, he said particularly, two of the most conservative Justices, Scalia and Thomas; they have consistently, I think, in a burst of judicial activism, revised constitutional doctrine and stricken many federal laws – literally a number of them — which give citizens the right to sue states if they’re being mistreated.

This court by a five-member majority said if your state decides to violate your patent, you have no recourse because of the 11th Amendment. And as far as activism is concerned, I thought it was a striking moment in Supreme Court history when Justice Scalia, the supposed restrained justice, blamed Justice Breyer for being too literal with his reading of the 11th Amendment.

So you have a new trend here in the court, where this five-member, very conservative, very activist majority has stricken a number of federal laws that give people protection.

And if you don’t get Al Gore elected, I think the likelihood is that the Americans with Disabilities Act, which guarantees to citizens the right to physical access to facilities in their own state and city government is likely to be thrown out by this court.

RAY SUAREZ: Well, what do we know about Al Gore’s voting record as a legislator, his public pronouncements as vice president that might guide us, might indicate what he would be looking for in a justice?

REP. BARNEY FRANK: Oh, I think, you know what both of them are probably looking for, and they dance around this, justices who would be inclined to agree with their views on the very controversial issues.

A president is unlikely to be able to predict what’s going to be controversial, six, eight, ten years down the road, and there a justice might vote differently than the president might. But on the current controversies, I think it’s very, very likely that George Bush will appoint justices who would overturn Roe versus Wade, and say abortion was not a constitutional right. Al Gore would appoint people who would maintain it.

And with regard to the right to sue on the basis of discrimination, under the Americans with Disabilities Act, or the AIDS Discrimination Act, Bush has already said his two models are Scalia and Thomas, who have taken away that right from private citizens and said the states have this power that no federal agency can deal with, and I think Gore would clearly be on the other side.

RAY SUAREZ: Congressman Hutchinson, let me hear your response to your colleague, Barney Frank.

REP. ASA HUTCHINSON: Well, first of all, I think that there’s the intent on the part of the Gore campaign to put fear in the American people. Again, if you look at the appointees of Governor Bush in Texas, 50 percent of those appointees were women and minorities.

The New York Times said that his appointees actually had a moderating influence on the court. Certainly there’s a difference of view. Governor Bush has indicated he’s a strict constructionist, wants people to strictly interpret the Constitution. Vice President Gore certainly talked about an expansionist view of the Constitution.

And I think that he would try to take the court in a direction that would expand the, you know, the central federal government, would try to interpret the Constitution, rather than simply strictly apply the Constitution. When you talk about the women’s right to choose, the Roe versus Wade has been upheld in a 6-3 margin. I think the greatest difference the next president could make would be in the area of partial abortion; that was a 5-4 decision.

And Vice President Gore has really come very, very close to saying he’s going to have a litmus test; in fact I think he’s made it clear that he would have a litmus test where he’s only going to appoint those justices that would uphold Roe versus Wade, and would, I think, continue down the path of tracking down the Nebraska law, the state laws prohibiting partial birth abortion. Governor Bush has simply said no litmus test; he’s going to have people who reflect his general philosophy and he’s going to have them reflect all walks of life.

REP. BARNEY FRANK: Could I say one sentence because — half of the people George Bush has appointed are minorities – well half of the people he takes as role models are minorities, kind of astounding, and that doesn’t reassure me.

RAY SUAREZ: Let me turn now to Anthony Lewis. What should voters be looking at in the fall, what’s at stake for the court, depending on who becomes president?

ANTHONY LEWIS: I can’t disagree with what’s been said. It’s very clear that a woman’s right to choose or abortion, however you call it, is an issue. I think Congressman Hutchinson, though he was quite right about Governor Bush’s appointments in Texas, has left out one important factor — and that is that the people who are most strongly against abortion, the right to life groups, the Christian right, are really committed, powerfully, to getting Governor Bush — if he’s elected president — to make their kind of appointments to the Supreme Court.

And in a sense that’s what they’re getting from him. They have had to accept a number of things from him that they don’t like so much. But I think judicial appointments are crucial to their interests, and I think it will not be the same as the appointees in Texas. He’s bound to please those groups. And it isn’t of course just abortion. There are racial questions. The Brady gun law went down by a 5-4 majority. There are lots of things in which it will make a big difference.

RAY SUAREZ: Stuart Taylor, we’ve talked a lot about abortion so far in this conversation. What are some of the other issues, given the kind of cases that the court is granting certain — that who becomes the next Justice could have a big bearing.

STUART TAYLOR: Well, as has been pointed out, the court is very closely balanced and the nominees have very different ideas with most liberal justices in recent history being Mr. Gore’s models and the most conservative ones being Governor Bush’s models.

The issues that are 5-4 right now that could tip dramatically, I think, are not, do not include abortion, which is 6-3. Race, particularly affirmative action, race based affirmative action preferences in election districts, is sort of a 4-4 issue with Justice O’Connor kind of on the fence.

A conservative replacing a liberal could move a long way towards banning racial preferences. A liberal replacing a conservative could move a long way towards open season for racial preferences everywhere. There are also closely balanced on the whole federalism complex of issues that I think are best described as federal regulatory power issues. The more conservative justices, presumably including any that Governor Bush appoints, are in a mode of cutting back on federal regulatory power, in some cases for states rights reasons, in some cases for property rights reasons.

The more liberal justices would give Congress more or less – and federal agencies — more or less carte blanche to do what they want. Religion, aid to parochial school could tip. Abortion, I actually think that if Governor Bush is elected, the chance of Roe versus Wade would be overruled in the next four years is pretty low, maybe one in ten, mainly because I don’t think it’s likely that two of the pro Roe versus Wade justices are going to retire in the next four years; maybe one will, but you need two.

And you need him to get two anti-abortion justices through the Senate, which wouldn’t be an easy trick. But in eight years of course Roe versus Wade could be in jeopardy, which would of course send the abortion issue back to the states, where presumably the voters in many states would have abortion rules much like those the Supreme Court has decreed.

RAY SUAREZ: Gentlemen, on the Hill, as an issue that you try to get voters to pay attention to, is this a particularly tough one — because there’s so many imponderables and things that can’t be predicted about the temperament of a man or woman who is going to serve for another 10, 20, 30 years, and the kind of issues they’ll face? Asa Hutchinson?

REP. ASA HUTCHINSON: Absolutely. First of all, I think it is difficult to get the voters to take a look at this issue. I think the people who are politically active certainly are aware of it, and I think the concern about the Supreme Court will intensify the base of both parties in getting out and participating in the election.

But also it is unpredictable, if you look in the past, you know, because there is not a litmus test, because the American Bar Association simply says they ought to be – have judicial temperament – they ought to be qualified and people of integrity – you know – that leaves a whole range of issues that are not dealt with and you can’t go in there and ask them how are you going to rule in a particular case, and so there is a lot of unknown that is there, and I think history tells us that. And I think that the voters shouldn’t make too much of this.

Again, the general philosophy is very, very important here, and I think it will impact the court, whether you’re going to be a strict constructionist and try to stick with the Constitution and the concepts of federalism that we hold dear, or whether you’re going to have an expansionist court. That’s the difference of philosophy here, and I think that’s what the people have to weigh.

RAY SUAREZ: Barney Frank, is a strict constructionist, constitutionalist somebody I agree with and somebody I don’t and – this issue is spoken of –

REP. BARNEY FRANK: The most activist activity going on in the court right now are the conservative justices striking down federal law after federal law on the grounds that the 11th Amendment means something it was never thought to mean until fairly recently.

And Justice Scalia literally said to Justice Breyer you are engaging in an overly literalistic reading of the 11th Amendment; stop acting as if it says what it means. Understand that it says what I know it means, which is that you cannot sue your state government if they don’t have an accessible library or city hall or if you can’t get into the city council meeting, et cetera. In fact, I’m a little struck by Asa’s trying to downplay this.

The fact is that the Republican Party is dedicated to taking away the constitutional right of abortion. It’s in the platform, George Bush does say that – the RU-486 thing has made it more active — and while it is true that Roe versus Wade may not be turned around in the first four years, it can be diminished. The anti-choice strategy has been to kind of whittle away at it and it’s only 5 to 4 on that, not 6-3 like some of the significant whitterings away – not just on partial birth abortions – but on other kinds of rules, notification, waiting periods, et cetera. And there clearly will be an effort to do that.

But to answer your specific question, yeah, I think a lot of people have focused on the Supreme Court, and in particularly, frankly, it’s one of the things that is helping hold liberals for Al Gore against Ralph Nader – because Ralph Nader tries to argue that it doesn’t make any real difference to people on the liberal side whether Gore or Bush wins, and the hardest thing he’s got to deal with there is that it clearly does with the Supreme Court.

Before 1980, it was true it wasn’t such a close correlation. But since the more conservative movement within the Republican Party and the reaction that’s produced on the Democratic Party, people pretty much know who they’re appointing.

David Souter was the only exception. But the Democratic appointees and the Republican appointees are very different on a whole range of issues. And yes, that’s a very important issue to a lot of voters.

RAY SUAREZ: Stuart Taylor?

STUART TAYLOR: I’d like to point out that three of the justices who have voted to uphold Roe versus Wade in 1992 were appointed by Presidents Reagan and Bush – those were Justices Sandra Day O’Connor, Anthony Kennedy and Justice Souter.

One of the difficulties voters have, I think, is if you just sort of plot public opinion against where the Supreme Court is and where they’re coming out, the most recent decision striking down was against partial birth abortion by a liberal 5-4 majority, that was not popular in public opinion according to…. Most members of the public aren’t comfortable with late term abortions. And so if you had one notch to the right on abortion, it might be rather popular.

On the other hand if you had a 2-vote swing to the right on abortion, which could conceivably happen, and you saw Roe versus Wade overruled, why I think that would go too far for most of the public. And so that’s one reason why I think voters, it’s very important they should legitimately should take it into account, but it’s a little bit harder to figure out exactly what’s going to happen. There’s more speculation in it.

RAY SUAREZ: Anthony Lewis, briefly your final thoughts?

ANTHONY LEWIS: My final thought is to reflect on how unfortunate it is, from my point of view, I expect Stuart agrees, that our view of the Supreme Court has become so politicized. It’s true, as someone said just now, that in the past appointments were made, there wasn’t a great deal of attention to them.

But now, everything has become so politicized that it’s very hard for any president to make an appointment without considering very closely the interest groups he will please or displease, and the Senate will certainly have the same view.

So that’s where we are, we’re all talking about the Supreme Court in a very political way. I regret it but I guess that’s the way it is.

RAY SUAREZ: Gentlemen, thank you all for joining me tonight.