[Standard introduction: Politics can bring out the best in people. It can also bring out the worst. All Nader supporters are, or will be, under attack from Democrats. Sometimes the best response, especially when personal friends or family members are involved, is to agree to disagree -- and postpone any discussion until a couple weeks after the election.

Some folks are so wrought up they are not just unwilling, they are truly incapable of dealing with reasoned analysis.

But for those with whom you can have a civil discussion during the next week you might consider the following.]

A consistent argument Gore supporters throw in the face of Nader backers is that a vote for Nader risks the reversal of Roe v. Wade and enough appointments by Bush to create a right wing, conservative Supreme Court.

Sometimes the argument is presented in shrill and near-hysterical terms. At other times it’s more calmly offered.

When rational discussion is possible you might want to keep these points in mind.

1. First of all, Democrats in general, and Gore and Lieberman in particular, have not been all that great either.

The two worst justices, according to those advancing this attack on Nader, have been Scalia and Thomas. They point out that Bush has indicated he’d like to appoint more justices like them. Let’s add Bork to their list, since he was also their target at one time.

OK, let’s look at the record.

Who voted to confirm Scalia? Every single Democrat in the Senate – including their candidate, Senator Al Gore.

Senator Lieberman confirmed Sunday (October 29) that he has previously said if he were in the Senate at the time he would have voted to confirm Bork.

It was also Senate Democrats who put Thomas on the bench. But for the votes of 11 of them he would have been defeated.

Here's what Gore is reported to have said about Thomas in 1992:

"Clarence Thomas is an impressive man with an astounding background... Even before his nomination to the Supreme Court, he was an inspiration to those who struggled against poverty and racism. His life shows that adversity need not lead to a life of quiet desperation, but can produce a strength of character that is a beacon for all who will follow. I believe there is no question of Judge Thomas' competence . . .. He possesses a quick and incisive intellect. He speaks and writes with precision, power, and persuasiveness. The term `hard-working' cannot begin to describe the habits that have taken him so far in so short a time." [I cannot vouch for this since I do not have a cite to the original source.]

Their party’s, and candidates’, voting records ought to mark the end of our need to respond. But let’s continue anyway.

2. The judicial appointment process is much more complex than the phrase "Bush's appointments to the Supreme Court" suggests.

Of course, Supreme Court appointments are important. It’s true that justices are appointed for life. And the president certainly plays a major role in their selection. But there are enormous restraints on what any president can do within the process.

The American Bar Association plays a role. So does the Department of Justice. So do numerous presidential advisors in and out of the White House. So does virtually every individual U.S. Senator (in the early-stages effort to get his or her own nominee on the list). The mass media cover the story, dig into the potential appointees' backgrounds, and editorialize. Law professors often issue jointly signed letters, or run newspaper ads, expressing their view of qualifications. So do numerous other organizations.

This kind of public process, pressure and participation puts a restraint on who ends up on the president's short list. No system is perfect, but this one has tended to help the country avoid ideologues of any stripe and the grossly incompetent. The president's freedom of choice in selecting Supreme Court nominees is nowhere near as great as that which he has in picking office help at the White House -- or even one of the lesser cabinet officers.

Thus, even if Bush did want to nominate “another Clarence Thomas” he would find a number of hurdles in his way.

3. The Constitution provides that the appointments are made with the "advice and consent" of the Senate. As a practical matter this means the appointments are "made" by the Senate as much as by the president. This is true for a couple of reasons.

(1) It weakens the presidency for a president to nominate someone he knows will be defeated. As a result, there is some White House-Senate consultation ahead of time. (2) There are hearings before the Senate Judiciary Committee that usually offer opponents the opportunity to explore their objections to the nominee. After Committee approval, if any, there is full Senate debate.

The choice of president is important. But anyone truly concerned about Supreme Court appointments ought to be equally or more concerned about the choice of Senators – such as the Democrats voting for Thomas – which party controls the Senate, and the chair of the Judiciary Committee.

If conservatives dominate the Senate, and the Judiciary Committee, it will make little difference how progressive Gore’s nominees may be. If both are dominated by progressive Democrats it will make little difference how conservative Bush’s nominees may be.

4. The political fallout would be such that it is highly unlikely Bush would nominate a justice known to be committed to the overturn of Roe v. Wade. With the very high percentages of Americans – in both parties, men and women – supporting choice such an act would set the Republican Party back for at least a generation. Republicans know this. They have been very adept at courting the religious right with rhetoric, accepting their votes, and giving very little of substance in return.

5. Most of the cases before the Court involve issues that defy labels like “liberal” and “conservative.” Many go off on procedural points (known to public and media as a “legal technicality”). And justices often vote for positions they may personally oppose ideologically because they feel bound by prior decisions of the Court (or constitutional or legislative principles), like Rehnquist’s recent vote upholding Miranda.

6. Justices thought to be conservative when appointed, such as Chief Justice Warren, often turn out – once they get on the Court, realize what a lifetime appointment means, and start studying the issues – to be characterized by the public and media as liberal.

7. Republican appointments to the Court have not been all that bad.

Presumably President Nixon would not be one of our critics’ favorites. And yet the author of the decision they fear being overturned, Roe v. Wade, was a Nixon appointee, Justice Blackman. Nixon’s other two appointments were not that shabby either: Chief Justice Burger and Justice Powell.

During the 1959-60 Term I was a Supreme Court law clerk for Justice Hugo L. Black. There were four Republican appointees on the Court at that time for whom I had great respect (and with whom my judge often joined): Chief Justice Warren, and Justices Harlan, Brennan and Stewart. Had Adlai Stevenson won the presidency in 1952 and 1956 I cannot imagine that he would have made any better choices than these Eisenhower appointees.

George W. Bush’s father appointed David Souter.

President Ford appointed Justice Stephens.

President Reagan was the one who appointed Justice Sandra Day O’Connor (and Justice Kennedy).

All in all, any fair assessment would have to give the Republicans pretty good marks for Supreme Court appointments.

8. But none of those Republican presidents was George W. Bush. So what’s his record? How has he done with his judicial appointments in Texas?

The Progressive magazine refers to a July 9th New York Times article:

"A look at Mr. Bush's record in Texas shows that he has appointed justices who have had a moderating influence on the Texas Supreme Court, often regarded as among the most conservative and pro-business in the country. He has appointed four of the court's nine justices and has been a political patron for a fifth."

"Earlier this year, the Texas Supreme Court stunned social conservatives throughout the state by issuing a 6-to-3 ruling that allowed a 17-year-old high school senior to have an abortion without telling her parents."

9. Does all of this mean that we need have no concern about Bush’s appointments to the Court? Of course not. Can we relax, and assume we won’t have to oppose one now and then? No. But, then, we’d have to keep an eye on Gore’s appointments as well – especially when it comes to their positions on big business issues.

What it does mean is that the shrill hysteria on this issue directed our way is at best a gross exaggeration, reflecting either a lack of understanding of the Court and appointment process or a deliberate use of scare tactics.