The Supreme Court Is at Stake on November 4th

We've got to give the Republicans credit: they have successfully diverted everyone's attention away from their plans for the United States Supreme Court. Almost forgotten in the wake of the GOP's seemingly endless smear attacks and fear mongering is the simple fact that if elected, John McCain and Sarah Palin will push our nation's highest court further and further to the right.

Why should we care? Why must we care? Because the preservation of our civil liberties, of our civil and human rights, depends on it.

Following George W. Bush's appointment of Chief Justice John Roberts and Justice Samuel Alito, the Supreme Court is now precariously balanced not between left and right, but between the mainstream center and the extreme right. There is nothing radical about Justices John Paul Stevens and David Souter, both Republican appointees, or the deliberate and moderate Justice Stephen Breyer. Even Justice Ruth Bader Ginsburg, the most classically liberal member of the present Court, is hardly a left-wing firebrand. The swing vote, Justice Anthony Kennedy, is a conservative Reagan appointee, albeit a jurist with respect for precedent and an apparent disinclination to promote the Republican social agenda.

In contrast, Chief Justice Roberts and Justices Alito, Antonin Scalia, and Clarence Thomas constitute an extreme conservative, not to say reactionary, phalanx on most of the Constitutional issues that have come before them and that the Court will confront in the future. The next President of the United States will most probably appoint several new justices, thereby dramatically affecting the character of the Court.

John McCain has made no secret of his intentions. He told Pastor Rick Warren at the Saddleback Church Forum on August 16th that he would never appoint jurists like Justices Ginsburg, Breyer, Souter and Stevens to the Court. In contrast, Barack Obama is certain to nominate moderate, mainstream justices who are in the tradition Justices Louis D. Brandeis, William Brennan, Potter Stewart, and Sandra Day O'Connor, as well as Justices Ginsburg, Breyer, Souter and Stevens.

McCain assured Pastor Warren that "as president of the United States, I will be a pro-life president and this presidency will have pro-life policies. That's my commitment -- that's my commitment to you." In a McCain administration, only the likes of Justices Scalia, Alito and Thomas, who would promise to eviscerate and strive to completely overturn Roe v. Wade, would even be considered for nomination to the Court. And if a Vice President Sarah Palin has any say in the matter, or if she ends up actually making the appointments, even a conservative jurist in the mold of Justice Kennedy is likely to be disqualified as insufficiently extreme.

Equally alarming to anyone concerned about our Constitutional rights should be the fact that if McCain wins, he will owe his election to his running mate's arch-conservative constituency, and he is certain to be captive to their demands. It is critical, therefore, for us to remind ourselves who Sarah Palin is and what she believes.

Governor Palin is a radical right-wing Republican whose social philosophy is rooted in her fundamentalist Christian religiosity. She opposes abortion in all cases except when the life of the mother is at risk; she promotes "abstinence-only" programs, rather than broader sex education, as the way to prevent pre-marital teen pregnancies; she thinks that "creationism," also known as "intelligent design," should be taught in public schools alongside evolution ("I am a proponent of teaching both," she said in a televised 2006 gubernatorial debate); according to her response on a questionnaire from the far-right Eagle Forum while she was running for governor of Alaska two years ago, she believes that parents should be able to opt-out their children from curricula, books, and classes that do not conform to their religious beliefs because "parents should have the ultimate control over what their children are taught;" as recently as August 2008, she said that she does not believe that global warming is "man-made;" she has described the proposed construction of a $30 billion Alaska pipeline as "God's will," and the Iraq war as "a task that is from God;" she opposes spousal benefits for state employees in same-sex relationships; she opposes stem-cell research; she has opposed measures to protect endangered species such as polar bears and beluga whales; she has opposed expanding hate-crime legislation in Alaska; and she believes that the phrase "under God," added to the Pledge of Allegiance in 1954, was "good enough for the founding fathers."

Do we want, can we afford, Supreme Court justices who espouse Sarah Palin's ideology?

Earlier this summer, former New York Mayor Ed Koch declared that:

"the country is safer in the hands of Barack Obama . . . . Protecting and defending the U.S. means more than defending us from foreign attacks. It includes defending the public with respect to their civil rights, civil liberties and other needs, e.g., national health insurance, the right of abortion, the continuation of Social Security, gay rights, other rights of privacy, fair progressive taxation and a host of other needs and rights."

We know beyond any shadow of a doubt that like the United States as a whole, the Supreme Court would be eminently safe in Barack Obama's and Joe Biden's hands. If, on the other hand, John McCain or, even worse, Sarah Palin, were to appoint the next several justices, their repressive, regressive world view would shape our nation's future for decades to come. This frightening possibility should be front and center in every voter's mind as he or she enters the voting booth on Tuesday.

Menachem Z. Rosensaft is a lawyer in New York City