How the Right-Wing Outmaneuvered The Tradition of an Impartial American Judiciary.

Can we all agree that the Republicans outmaneuvered us by getting justices on the Court who would undo four to five decades of progressive politics in America — change in that institution will inevitably be required to get a progressive agenda back on track.

While Democrats fought for control of the Presidency following Watergate, Republicans and right-wing allies shrewdly maneuvered for an eye-stingingly conservative Supreme Court, making only one or two missteps-Bork and David Souter; one strikeout and one who refused their agenda.

Now nearly 50 years after the appointment of Wm. Rehnquist, Republicans-and the Federalist Soc.-have a solid far right 6–3 majority with only the occasional moderate vote by the Chief Justice.

Democrats and progressives have yet to mount anything similar to the strategy that now threatens voting rights, the Warren Court progress in limiting police power, and the Southern Civil Rights movement as a feature of American life. Efforts to strengthen democracy cannot end at the halls of Congress but must include rethinking of the Court’s role in a free nation.

Moreover, the right-wing legal thought-machine has manufactured and utilized the ideas of “textualism” and “originalism.” This legal philosophy has been not only overtly reactionary but has stymied the Liberal and progressive efforts to reject judges and justices who are wedded to it.

The trick of originalism as a judicial philosophy is to pretend that there is no philosophical bias in judicial decision-making; hence right-wing and pro-corporate justices have been waved through the confirmation process with little scrutiny of their decisions because of the fear that Senators would look “unfair” or supportive of “judicial activism.”

This has relegated Democrats to using personal and character issues to oppose right-wing appointees — an equally precarious tactic — because Republicans have anticipated these attacks from the outset.

Democrats must rejoin the battlefield by examining and confronting the judicial agenda of right-wing judges and justices and their refusal to do justice for average Americans.

-Albert Turner Goins