That rumbling, lurching feeling is the nuclear aircraft carrier "America" lurching to the right as the Ed Meese, Spencer Abrams team reaps the fruits of a quarter-century of effort dedicated to placing dedicated conservatives in positions of influence in Washington. Abrams founded the Federalist Society, the organization of choice for careerists on the right to move up the federal ladder from clerking for a Supreme Court justice to working in the president's law office, called the Office of Legal Counsel of the Justice Department. They tell him whether its okay to authorize the use of torture, indefinite detention, extraordinary rendition, and the like, as part of his war powers, allegedly inherent to the presidency. Query that.
The American Right fought a lot harder in Florida, in 2000, than did Al Gore. When the Supreme Court, by a 5:4 vote, with the late Chief Justice William H. Rehnquist leading the charge, handed the presidency to George W. Bush because time was running out and why not hand it to their guy instead of the opposition, the cascade of unforeseen events broke through the dam. After Bush v. Gore, l'deluge.
Following the 9-11-01 attack by Al Qaeda on the World Trade Center in New York, Pres. Bush, who was foundering, directionless, as president, proclaimed himself a "war president," with all rights and privileges appertaining thereunto inuring to him. The war was on a real but amorphous enemy that trained in Afghanistan, which we attacked, to our credit. We also attacked Iraq, to get rid of Saddam Hussein, which I also think was right and proper on a number of levels. Sure, I was taken in by Sec'y of State Colin Powell's claim that he saw the evidence and it was good, that Saddam had WMD, which it wasn't and he didn't. But I figured that Saddam was refusing to play ball with the international community, of which we are top dog at the moment, and it's the only international community we have, so...the rest was inevitable.
But then the Chief Justice died, and Roberts, his former law clerk, filled the vacancy. Earlier, Sandra Day O'Connor had announced her retirement, effective with her replacement being confirmed, which happened this morning, with the full Senate vote (58:42) on Samuel A. Alito, following the threat, which failed to materialize, of a Democratic led filibuster headed by Massachusetts senators Kennedy and Kerry.
During the Alito confirmation hearings before the Senate Judiciary Committee, colleagues and former law clerks attested that in his decision-making, Sam Alito followed the law and did not make it. Well, that was his job.
Now his job is different. Now he's supposed to follow precedent if he thinks it still important to do so for the good of the country and the 300 million or so residents, and rising, but he's also supposed to discard or work around precedent when he thinks it important for the country to get rid of inconvenient vestiges of past attitude.
This make him a law-maker, not a law-follower, as he's been until now.
That's what it means to be confirmed to the Supreme Court. You get to write the rules of the great game of life in this country for the rest of us. That's why the nominations are so controversial. Only nine people at a time get to be the rule-writers. They can tell the president he's wrong, and the Congress that it's wrong. Also the States. For life, on good behavior.
That's a lotta power for the Gang of Five, as it only takes five votes to turn the ship from the course it's been on.
Women's rights? Up for grabs.
Presidential power? Up for grabs.
Minority rights? Up for grabs.
Congressional power? Up for grabs.
Voting rights? Up for grabs.
Criminal justice? Don't make me laugh.
Justice O'Connor, as conservative as she has been, may seem to be as liberal, to the Right, at Justice David Souter is viewed, compared to the Roberts-Alito axis that I expect to see. I don't know which of them is further to the right, but I'm not sure how much difference it will make, whether Tweedle-Dee or Tweedle-Dum is at the helm, while Justices Scalia, Thomas, make up the next reliable two-some. Scratch Stevens, Breyer, Souter, and Ginsburg, who make up the so-called liberal wing, although we haven't had liberals in Washington since Nixon was run out of town, Jimmie Carter came in, the victim of the Iran Hostage crisis, and the Reagan Revolution began, in which blue collar and hard-hat Democrats decided they were Republicans.
That leaves one person left as the Swing Vote: Anthony M. Kennedy. Deeply conservative with a libertarian streak. He voted to uphold the abortion right in Casey and recognized, in Lawrence, that gays were human beings entitled to equal protection of law, just as is carved in stone on the lintel of the Supreme Court Building.
My guess? Kennedy rules. He'll preserve the civil rights gains of the 1960 for minorities, women, and gays.
Y'wanna see a fight? Just wait until Stevens, Ginsburg or Breyer decides to retire. Then you'll see a Donnybrook.