DAVID SAFIER: Court, the presidential tie-breaker - The Explorer: Editorials

DAVID SAFIER: Court, the presidential tie-breaker

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Posted: Tuesday, October 21, 2008 11:00 pm | Updated: 8:03 am, Thu Mar 24, 2011.

It’s the 11th hour in what seems like an endless presidential campaign. Many of us made our choices long ago. (For me, it’s Obama by a wide margin.) Some have already sent off their mail-in ballots or voted at early voting sites, so for them, it’s all over but the counting.

But some of you still haven’t decided between Obama and McCain. You’ve gone over the issues again and again, you watched the debates, and you’re still looking for that one issue that will help you make up your mind.

OK, I’ve got a tie-breaker for you. Two words. Supreme Court.

Our next President will appoint at least one new Supreme Court justice. You can be almost certain of that. More likely, he will choose two or three new justices. Following Bush’s two appointments that nudged the Supreme Court to the right, new justices chosen by McCain would result in a lopsided, far-right court that would perpetuate the worst aspects of the Bush presidency for decades to come.

Obama’s appointments, unlike McCain’s, would keep things pretty much as they are. The likely retirees are ones who Obama respects and admires, so he would appoint similar justices to replace them.

How much does the Supreme Court matter? Let me refresh your memory about three major decisions starting in the 1950s that have changed this country profoundly.

In 1954, the Court paved the way for integrating our schools with its decision in Brown v. Board of Education.

In 1973, Roe v. Wade gave women the right to a safe, legal abortion during the first three months of pregnancy.

And in 2000, the Court stopped the vote counting in Florida with its Gore v. Bush decision, giving the contested election and the presidency to George Bush.

Without those decisions and many more, we would be a very different country.

Three justices are likely to retire in the next four to eight years. John Paul Stevens is 88. Ruth Bader Ginsburg is 75. David Souter, who is 69, says he’s ready to leave the court. All three of them lean toward a liberal’s view of the Constitution and the law, which Democrats tend to favor. So if Obama is president, he would appoint justices similar to the ones who retired. The balance on the court would remain basically unchanged.

But all three likely retirees made McCain’s list of his least favorite justices. McCain says he’s “proud” of Bush for appointing Sam Alito and John Roberts, two of the most conservative justices on the court. McCain would appoint more of the same. Though the current court leans to the right, it still has enough justices on the other side for the kind of serious back-and-forth needed to arrive at reasonable decisions on controversial cases. With two or three appointments by McCain, that vital balance would vanish.

No one can say for sure what cases will come up in the future, or how a Bush / McCain court would vote, but recent history gives us a pretty good idea. If a situation like the 2000 vote in Florida came up again, the court would repeat the decision which most legal scholars call the worst in over a hundred years. If there’s a question of worker rights or consumer protections versus corporate interests, expect the court to side with corporations. Expect the same if it’s a question of corporations being held responsible for environmental damage they cause. The environment would lose out to profits every time.

And without a doubt, expect decisions that would limit women’s health and reproductive choices, including the repeal of Roe v. Wade. Many states would outlaw abortions within hours of the decision.

As wrongheaded as I think a McCain / Palin administration would be, it can’t last more than eight years. But the damage that would be done by a Bush / McCain court would linger for decades.

Dave Safier is a regular contributor to Blog for Arizona.

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