Bush's Lasting Legacy by Tim Siggia

Bush's Lasting Legacy

By Tim Siggia

May 19, 2008

Perhaps the most notable accomplishment of the liberal "mainstream" media, at least in their view, has been the demonization of George W. Bush. Within a period of eight years -- I say eight because their efforts began long before Bush was actually elected -- the liberal media have succeeded in making George W. Bush the most despised president since Richard M. Nixon, who, ironically enough, was also elected to two terms, though he didn't finish the second. Conservatives, too, have had their own misgivings with Bush, what with the expansion of government and the flagrant federal spending that has happened on his watch. Granted, Bush has had some laudable ambitions that sadly never came to pass, such as permanent tax cuts and Social Security reform. But he has one lasting legacy that will hopefully live far beyond his presidency: He changed the makeup of the Supreme Court.

Before Bush, the nation's highest court had been one of a decidedly liberal bent, despite the eight years of Ronald Reagan's presidency. In fact, Reagan himself was in part responsible for this since it was he who nominated Sandra Day O'Connor, whose opinions more often than not made for liberal rulings. When conservative chief justice William Rehnquist died, Bush nominated John Roberts to the high court, who was later confirmed as chief justice. The composition of the court was at this point yet unchanged, what with one conservative chief justice having been replaced by another. What made the difference, though, was the unexpected retirement of Justice O'Connor, making for a second vacancy on the Supreme Court. And this is where Bush nearly blew it.

His initial nomination to replace O'Connor was that of Harriet Miers, who was largely unknown and of dubious credential. Conservatives protested the Miers nomination vociferously, and Bush, realizing that he was in danger of alienating his own base, withdrew his nomination. In place of Miers, he nominated Samuel Alito, a judge with a proven conservative track record. After lengthy debates, Alito was finally confirmed, and the makeup of the Supreme Court was now significantly altered. When Bush had taken office in 2001, the Supreme Court had been predominantly liberal despite the presences of Chief Justice William Rehnquist and justices Antonin Scalia and Clarence Thomas. With the confirmation and appointment of Samuel Alito, however, the high court was now evenly divided along ideological lines, with four conservatives (Scalia, Thomas, Alito, and Chief Justice Roberts), four liberals (Stevens, Souter, Breyer, and Ginsburg), and one moderate, Justice Anthony Kennedy. This is a legacy sure to outlast either the war in Iraq, the current economic downturn, or Bush's personal unpopularity.

So why bring this up now?

I bring it up simply because of a May 15 ruling in the California Supreme Court legalizing same-sex marriage in that state, in which the court effectively gave the people and their governor the extended middle finger and ruled that both California's marriage law of 1978, defining marriage as the union of one man and one woman, and the recently enacted Proposition 22, which strengthened that law with the words, "Only marriage between a man and a woman is valid or recognized in California," are unconstitutional. This proposition passed the legislature with 61 percent of the vote. What the California Supreme Court said, in effect, was exactly what that of Massachusetts had said four years earlier: Legislatures, governors, and will of the people be damned, and democracy be damned as well. Oligarchy is what rules in California. It's the sort of attitude we generally expect from liberal Democrats, but this court, curiously enough, is dominated by Republicans. Fear not your enemy, for he can never betray you. It takes a friend to do that.

Governor Arnold Schwarzenegger, who has twice vetoed measures that would have legalized same-sex marriages, says he respects the court's decision and "will not support an amendment to the constitution that would overturn this state Supreme Court ruling." But other Californians have such an amendment in mind, and a November ballot measure would allow Californians to vote on an amendment banning same-sex marriage. The issue may ultimately be appealed to the U. S. Supreme Court, and this is where the high court's ideological makeup could come into significant play. Under the Rehnquist court, there would have been little doubt of the outcome of such an appeal. But the Roberts court is significantly different, and, should this case find its way to the Supreme Court, the opinion of Justice Anthony Kennedy will be of crucial importance. It could conceivably result not only in the overturn of the California ruling, but in that of the Massachusetts Supreme Court as well.