Why Gore Should Run?
Reading the Sunday paper today I suddenly had a thought about Al Gore and what is at stake in the 2008 and 2012 presidential elections. What's arguably the single most important issue in the presidential election is before us this week but, for various reasons, it is not something emphasized in our political culture. I'm not thinking here of the Iraq war, taxes and the economy, energy policy or the environment but rather the (continued) changing composition of the Supreme Court.
The ruling of the SCOTUS in Hamdi v. Rumsfield on the last day of the term's session should not provide any comfort about the long-term direction of the Supreme Court and the still potential implications of this direction. On the contrary. What the Roberts and Alito appointments seem to have done is to have starkly increased the polarization of the court. The essential spectrum on the court now is legible in three different perspectives: four liberal/left members, four conservatives/right-wing members, one right-centrist swing vote.
This "balance" means one thing if we understand it on its own terms and quite another if we see it as a snapshot within a necessarily dynamic movement that takes place over time. It's quite possible that neither Stevens, Ginsburg, Souter, Kennedy or Bryer will leave the court before the end of 2012. Or the end of 2016. But at some point in the next election cycles the court will continue to move, and, simply put, if the Republicans continue to win the presidency, the court will dramatically change. Here are the ages of these five justices as each of these presidential cycles nears its third year:
December 2011: Stevens (91), Kennedy (75), Souter (72), Ginsberg (78), Breyer (74)
December 2015: Stevens (95), Kennedy (79), Souter (76), Ginsberg (82), Breyer (78)
December 2019: Stevens (99), Kennedy (83), Souter (80), Ginsberg (86), Breyer (82)
(By contrast, Clarence Thomas will be 67 in 2015, Roberts will be 60, Alito will be 65.)
It seems fairly clear that there is a huge, not a negligible difference between a 4-1-4 court and the 5-4 (or 6-3, or 7-2) court that we could - and, in fact, most likely will -- face if Democrats don't win a presidential cycle fairly soon. Many of Bush's policies have been, from early on, designed to make it easier for the Republicans to continue holding on to power in the future. This is the central logic of Rove's political strategy: exercise political power in order to make holding, and gaining, further political power easier and easier. Among the major actions that the Republicans have taken in this regard we could put:
1. Redistricting Texas to create more House Republicans
2. Manipulation of voting and voters by Republican governors and secretaries of state.
3. Pay-to-Play schemes from K Street Project to the Bush energy policy that have given Republicans huge advantages in electoral dollars for each of the last election cycles. (We need only think of Busby's campaign last month, obviously effected by this kind of imbalance - even as the race, spurred by Duke Cunningham's arrest, was a referendum on such Republican financial malfeasance).
4. Massive changes in the separation of powers - including, of course, Bush's policy about signing statements - that work to take power away from any Democrats that do manage to get elected to Congress.
5. Threatening the "nuclear option" in order to eliminate the legislative tools available to the Democrats that are in the Senate.
6. Selective discrimination against blue States or areas in favor of Red, from the disproportionate largesse that has flowed to Jeb Bush's Florida to the mistreatment of New Orleans (the bluest part of Louisiana) to the notorious shifting of homeland security funds away from New York City.
7. Promoting state legislation deliberately designed to boost conservative turnout or tamp down democratic turnout in nationally significant races (most successfully, the anti-gay marriage referendums in 2004).
Most important of all, though, in this regard, is the reshaping of the Supreme Court. No other political project of the Republicans will have nearly such a consequence for the potential growth of Republican power. Of course, this vicious cycle was most powerfully demonstrated at the very start of the Bush Administration, in the 5-4 Bush v Gore ruling. But on a host of other issues, the judiciary system has and could continue to play an extremely significant role. Just in this SCOTUS session itself, we have seen important rulings about redistricting, campaign finance and the separation of powers. On all of these issues, the court has already moved to the right since O'Connor's retirement, and in each of these cases, either Kennedy or Bryer - together with the reliable votes of Souter, Ginsburg, and Stevens - exercised a moderating influence.
It seems fairly clear that if the Republicans get one more of these votes, the rules of politics in this country might be dramatically changed. From abortion, to worker's rights, to environmental legislation, such a SCOTUS would dramatically alter what the Democratic party could fight for, how we could fight for it and what kinds of rights were available through the constitution. Beyond radically altering the policy landscape, such a court would also make it easier -- and potentially much easier -- for Republicans to continue gaming the system, redistricting, gerrymandering, flooding corporate money into campaigns at all levels, destroying labor unions, allowing the centralization of the media, etc., etc.
This gaming of the system, however, has already extended to the very struggle over the Supreme Court itself. In their victories on Roberts and Alito, Republicans were successful at dividing the Democrats and winning the war of public opinion. Crucially, Bush's SCOTUS appointments were the only major policy of his second term which polled well. The "nuclear option" and "gang of 14" also seems to have worked to the advantage of the Republicans, shifting what we understand as the center of debate and putting the democrats in a remarkably defensive position. Compared to other recent political moments, it is not clear what would even constitute a powerful political strategy, by the Democrats, on court appointments. While Senate challengers across the country are running on the Iraq war, fiscal responsibility, New Orleans and energy policy, the SCOTUS has not emerged as an important part of the Democratic platform.
If I were Al Gore, the future of the Supreme Court would weigh very heavily indeed. Next year's docket, indeed, includes a major case on global warming. This same court, even before O'Connor's retirement, offered him a bruising defeat in the 2000 election controversy. We cannot assume that our odds are all that good in the 2008 presidential election. Another close election, or the potential realignments that we can conjure up through various permutations of Al Qaeda, Iraq, fear mongering and war hysteria, Republican mischief, campaign spending, voter manipulation, voting manipulation, John McCain, Hilary Clinton, our other Democratic contenders and the continued, alarming exercise of power by Bush, Rove and Cheney, should not leave anyone sanguine. Many issues that are entirely external to the Supreme Court (from Bill's relationship to Hilary to another attack in the U.S. by Al Qaeda) could end up being of crucial import to the history of the court - and through that, the history of this country. If Gore really does have the best chance of retaking the White House in 2008, it might be simply incumbent on him to throw his hat back in the ring.
cross posted at daily kos