Tuesday, November 01, 2005

Supreme Oligarchs

If Warren Harding could make four stupendously political appointments to the Supreme Court in barely three years, we should consider ourselves lucky that Bush has managed just two in five years, though with three to go and decrepitude creeping up on two or three of them up there, he may yet do to the court what the 1920s did to America. The Alito nomination will be bruising, but if a Senate with a majority of 57 Democrats could manage to appoint Clarence Thomas to the court in 1991 (the vote was 52-48, the closest for any confirmed justice), A Senate with a majority of 55 Republicans isn’t about to turn down Samuel Alito, who can always depend on Thomas to make him look more moderate the way Arkansas can depend on Mississippi to make it look less poor.

It’s not, of course, about qualifications or experience, though the rigid right and duds à-la-Miers (think Thomas again) can make it seem that way. You expect that the nominees will be stellar. You expect that they’ll be brilliant. You expect that they’ll have the deepest judicial experience possible at mid-career. It’s only when the most skillful administration in history to wield the smokescreen of low expectations blows smoke again, as it did with Miers, that a brilliant and intelligent nominee somehow seems like an extraordinary gift the Senate and the electorate should feel privileged to accept, endorse, adore. It all helps keep the lid on the more explosive issues, the only issues that really  matters with a nomination to the court: the individual’s judicial philosophy and temperament. In those regards Alito’s seem perfectly legitimate in and of themselves. But it’s not the “in and of themselves” qualities that should decide an appointment to the court (though those qualities and the politics of the moment always do), or at least inform the criticism of those appointments. It’s how the appointment would affect the nation’s laws, what direction the nation is bound to take as a consequence of the appointment. Put aside Roberts and Alito. The direction the nation has taken, in large part thanks to the court since the mid-1980s (when, with O’Connor’s blessing, the drug-war-induced shades of a police state first emerged, go-go federalism burst its first buds and power won out over individualism) has been reactionary-bound. It never made it, quite. It is certain to do so now. For that’s the secret of neo-federalism: Its intentions aren’t to give back to the states the power the federal government has allegedly usurped. That assumes that the regulatory state of the New Deal was an imposition on individuals rather than a leveler, a check on corporate and state power. Federalism’s intentions is to do away with those checks and, in the name of states’ rights (of local and state indifference allied with federal “restraint”) to let power be. Scalia, Roberts, Thomas, Alito: These are the new oligarchs, our not-always secular mullahs on a crusade to remake American law in the 1920s’ image of Taft-like corporate corpulence and federal indifference to anything that stands in the way of power and lucre. And we’re about to grow old with them.