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Jewish World Review Feb. 14, 2002 / 3 Adar, 5762

Jonathan Turley

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Living in constitutional denial -- A YEAR after the presidential election, some liberal Democrats still appear to be slowly moving through the stages of loss first defined by psychiatrist Elizabeth Kubler-Ross: denial, anger, bargaining, depression, and acceptance. A recent proposal from former Clinton White House Counsel Abner Mikva would suggest that some Democrats remain mired somewhere between denial and bargaining.

Currently a visiting professor at the University of Chicago law school, Mikva recently put forward a theory that has the hearts of many die-hard Democrats racing with anticipation: President Bush should be barred from filling any vacancies to the Supreme Court during his current term. Thinly cloaked in constitutional and historical arguments, Mikva insists that any Supreme Court appointments should be delayed until the next presidential election ­ in three years. Such opportunistic arguments are enough to make even James Carville blush, but, for some it seems, hope springs eternal that the Constitution might afford what the election denied.

For many Democrats, the period of denial following the loss of the presidential election was marked in court filings and pregnant chads. Even before the Supreme Courtıs decision, however, in Bush v. Gore ­ largely deciding the issue in favor of President Bush ­ denial was already turning to anger. Democrats struck out in all directions. Green Party Candidate Ralph Nader was the target of a campaign of democratic retribution ranging from the withdrawal of democratic donors for his environmental causes to banishment from many democratic offices in Congress.

With the Presidentıs popularity at a historic high, Mikva appears to be moving from denial to anger to bargaining. Mikva grudgingly accepts that President Bush is president, though in a Washington Post editorial he emphasizes that Gore won the popular vote. This is suggested as somehow significant despite the facts that the popular vote margin was statistically razor thin; that previous presidents have been elected on the electoral but not the popular vote; and that, in our constitutional electoral system, popular vote is legally meaningless. Yet, this image of an election stolen creates a useful appearance of victimization for Mikva and others in advancing this proposal. It is not that we are trying to subvert the constitutional process, we have been injured and deserve recourse. Otherwise, Mikvaıs proposal is nothing more than a raw partisan shutdown of the Presidentıs prerogative to fill Supreme Court vacancies.

The real motivation for this proposal, however, lies elsewhere. Mikva notes that the Supreme Court could easily have as many as three vacancies during Bushıs term and he asks menacingly "what kind of person would President Bush nominate?" Clearly, not a person to Mikvaıs liking.

The solution for Mikva is to simply divvy up powers with Bush like hostile roommates locked into a multi-year lease: Bush can continue to wage war and enjoy the trappings of office but the Supreme Court would be off-limits. His reasons are many but few withstand serious review. First, Mikva argues that nothing in the Constitution requires nine justices and that historically there have been long periods of delay in the confirmation of nominees. This, of course, ignores that modern delays in confirmation have been due to concern of an individualıs qualifications not some categorical denial of the right of a president to place qualified individuals on the Court.

Mikva also argues that it would be unseemly to allow the President to add to a court that "itself made the final decision as to who should be president." Mikva again chooses to ignore that voters chose this president through our constitutional electoral system. In advancing this liberal mythology, Mikva ignores studies that show that President Bush would have prevailed even if Gore succeeded in forcing his recount. As it turns out, the people of Florida and the rest of the country made the "final decision as to who should be president." Mikva simply notes that "there is still unhappiness" about the Courtıs decision ­ an empirical observation apparently based on his conversations with other unrequited Gore supporters.

Mikva labels the current Supreme Court as an "activistı Court that only needs a couple new votes to reshape laws in an image that Mikva finds unacceptable. Such labels are often used to justify raw political acts. Mikva should knew better. For years, conservatives criticized Mikva as one of the most liberal members of Congress and later as one of the nationıs most liberal judges in D.C. Long accused of continuing his legislative career from the bench after leaving Congress, Mikva was once dismissed on the same basis.

Mikvaıs proposal reveals an unsettling habit among liberal law professors to adopt historical and constitutional arguments that strangely conform to their own political interests. Of course, while John F. Kennedyıs defeat of Richard Nixon in 1960 was viewed as largely stolen as a result of voting fraud in places like Chicago, no one seriously argued for a suspension of his right to fill vacancies on the Court. The test of principle is when it demands a result that is against your own political inclinations. Like many academics during impeachment, Mikva appears to follow Oscar Wildeıs rule that the only way to be rid of temptation is to yield to it.

The suggestion of Mikva would seriously weaken our constitutional system by creating ambiguities in authority or questions of legitimacy. Mikva would create a precedent for members of Congress to categorically refuse nominees by presidents under certain undefined circumstances. It is not simply a bad idea, it is a dangerous one. Mikva had an opportunity to influence the make-up of the Court as a voter in January 2000. The most central principle of a democracy is the obligation to live by the results of the democratic process.

Despite these obvious problems, Mikvaıs arguments have become the rage among some democratic members and staffers in Washington still living in denial. The success of Mikva in moving from the stage of denial to bargaining is hardly progress after a year of the Bush Administration. The sooner this bizarre theory is put to rest the sooner Mikva and others may reach the stage of Kubler-Ross that most voters reached last January: acceptance.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School. Comment by clicking here.

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© 2002, Jonathan Turley