As Mitt Romney rightly pointed out in December, one of the most important issues riding on the upcoming presidential election will be the future of the federal courts.
Yet, if 2012 is like other election years, the courts will be discussed relatively little by the candidates. That would be a big mistake. Romney has already signaled to the Republican base that he will move the federal courts even farther right than they already are. He named Robert Bork, the judge whose legal views were so extreme his Supreme Court nomination was rejected by the Senate, to lead his “Justice Advisory Committee,” and has said he would seek to nominate judges like those who have made the current Supreme Court the most conservative in decades.
In an editorial this weekend, the New York Times explained how politics has reshaped the courts and the law under the past three Republican administrations. Courts picked by Mitt Romney and Robert Bork would be no exception:
Each party has its program and works to turn it into law. The great example of political change through legal change was the long, methodical effort to whittle away at segregation from within the legal mainstream that culminated in the court’s decision in Brown v. Board of Education. The conservatives’ legal-political strategy draws from Brown, but it is also vastly different in nature and design.
The struggle for school desegregation was waged by and on behalf of oppressed minority groups seeking to make good on the Constitution’s promise of equal rights. They faced strong opposition from the most powerful people in our society, in courts that were not necessarily sympathetic or overtly hostile to their cause. And they fought a long, incremental campaign.
When Lewis Powell Jr. energized conservatives by writing in 1971 that “the judiciary may be the most important instrument for social, economic and political change,” he was himself an incrementalist and expected others to be.
But the conservative legal battles of our modern times are being waged by the most powerful, often against the weak and oppressed. They began with a carefully planned and successful effort to reshape the courts to be sympathetic to conservative causes. They are largely aimed at narrowing rights, not expanding them — except where property and guns are concerned. And beginning with the Reagan administration, conservatives became impatient with the pace of change brought about from within the mainstream. They sought to remake law into a weapon of aggressive action.