If George W.
Bush is elected, one probable result will be to put
meaningful campaign finance reform off indefinitely. That is not only
because Governor Bush is opposed to serious change in the system.
It is because of the appointments he is likely to make to the Supreme Court,
which has the last word on whether and how campaign spending can be limited.
poses a hard question for Ralph Nader and his supporters. Mr.
Nader has quite rightly called for an end to the obscene race for money
that now marks political campaigns in this country. Yet he tells his rallies
that there is no real difference between Governor Bush and Al Gore,
ignoring the profound impact a Bush-appointed Supreme Court would have
on the chance for reform.
is one example, among many, of large issues on which a
future Supreme Court could make a great difference — and on which Mr.
Nader has hypocritically ignored reality in saying that the two major candidates
are the same. I say hypocritically because he is too smart not to know what he is doing.
is another telling example.
Mr. Nader is the candidate of the Green Party, and his calls for protecting
the environment mean a lot to his audiences.
legal theory advanced by judicial appointees of Presidents
Reagan and Bush is a forbidding obstacle to national environmental regulation.
Some of those judges, in the Federal Courts of Appeals, have found regulations invalid
either because Congress delegated rule-making power to administrative agencies —
which is the only way regulating gets done — or because the rules went beyond
federal power over interstate commerce.
reform would be impossible if the views of Supreme
Court Justices Antonin Scalia and Clarence Thomas — whom Governor
Bush has called his models — prevailed. They wrote last January that any
limits on either campaign spending or contributions violated the First
Amendment's guarantee of free speech.
I do not believe
that there is only one possible answer to questions that are
put to the Supreme Court. Justice William J. Brennan Jr. used to say that
his colleagues, agreeing or disagreeing, had the same commitment to the
Constitution that he did. The questions are hard, and the answers — all in
good faith — are bound to differ.
Nor do I believe
that George W. Bush has fixed, extremist views on the law.
He does not seem to have thought deeply about the kinds of questions that go
into the appointment of Supreme Court justices. In Texas, judges are elected.
Governor Bush has filled vacancies, however, and his appointees on the whole
are respected judges, conservative but eschewing the extreme.
But the realities
of the Republican Party these days — the highly
conservative party it has become — will severely limit a President George
W. Bush's choices if and when Supreme Court vacancies arise. The right
will expect nominees who reliably embrace its views.
is surely aware of the bitterness on the right about one of
his father's choices, Justice David Souter. In the primary campaign Steve
Forbes, opposing Governor Bush, said, "America simply cannot afford
another Supreme Court justice like David Souter."
Abortion is the
prime issue for the right. Mr. Bush has said he would not
make it a litmus test that his nominees would overrule Roe v. Wade. But in
practice that will surely be a consideration. A leading anti-abortion figure,
Gary Bauer, said on NBC's "Today" show the other day that if Mr. Bush
became president and had more than one vacancy to fill on the Supreme
Court, it was likely that "Roe v. Wade would be overturned."
All this makes
Ralph Nader's performance cynical. He knows better than
most people what a difference a Bush or Gore presidency could make in
the Supreme Court. Yet he gives the impression, as a Wall Street Journal
report put it, that "he would be happy to cause a Gore defeat." And Mr.
Nader is campaigning hard in states where his support could cost Mr. Gore
the electoral vote. Yesterday he was in Iowa, a toss-up state.
domestic issue in this election, I believe, is the future of
the Supreme Court. Policy on taxes and the like is transitory; it can be
quickly changed. The justices may be there for decades.