WASHINGTON — Bet on it. The 1990s are going to be a decade when U.S. culture and politics will be changed enormously by a small, black- robed elite that Americans often love to hate--federal judges. Crime, abortion and civil rights will be the great banners and battlegrounds, with a little sex and religion on the side.
Republicans who once foamed against the federal courts will be figuratively lining up to kiss the hem of Chief Justice William H. Rehnquist's robe, while liberals who spent the '60s and '70s idealizing judges may spend the 1990s bashing them. It's all as American as apple pie.
The irony, however, is that the culture and ultimate politics should go in different directions. The Supreme Court's expected further rightward tilt, as George Bush appoints additional conservative justices, already has the NAACP threatening a new era of civil disobedience, while stalwarts of the American Civil Liberties Union see dark days ahead for Constitution and Republic alike. The fear rhetoric is exaggerated, but conservatives may well succeed in making more law through the courts over the next 10 years than they did by legislation during the '80s. In an anti-permissive sense, the '90s are shaping up as a Richard M. Nixon-Ronald Reagan kind of decade, a delayed flowering of the court appointments those men made in the '70s and '80s.
In partisan political terms, though, liberals may eventually reap the benefit--and the seeming divergences are inter-related. That's because the federal judiciary in general--and the Supreme Court in particular--are among the most notable lagging indicators of U.S. politics. If liberals can validly indict the cultural, criminological and jurisprudential excesses of a conservative Supreme Court circa 1992, they can take Americans' minds off yesterday's linkage of liberal politics with campus rioters, mugger-loving judges, flag-burners, school-busing zealots, furloughed criminals, militant feminists and the like. If this list seems unfair, Republican National Chairman Lee Atwater has crammed even more in a 45-second TV commercial or a single paragraph of a fund-raising letter. The next election may have new bogymen.
Conservatives, in fact, began their national political ascent with a mirror-image opportunity roughly 25 years ago. As liberal ideology and judicial power crested in the last real years of Democratic national power--from 1965 to 1968--the popular reaction was negative. Indeed, voter resentment of social engineering and the new permissiveness was strong enough to push aside lingering imagery of the early '60s--when conservatism often seemed to stand for Birmingham sheriffs with police dogs, presidential candidates with an itch for atom bombs and politicians opposed to federal aid to education, and maybe Social Security, too. Yet not only did George Wallace, Nixon and Reagan successfully lambaste liberal criminology and sociology, they attacked the federal judges who propounded it and promised to replace them. The rest is history--and GOP dominance of the White House for the last two decades.
But the same history sheds a different predictive light on the 1990s. A quarter century ago, when liberal judges started overreaching, the United States was near the end of the Democratic era that began with Franklin D. Roosevelt in 1932. Three decades of largely Democratic appointments had produced unprecedented liberal control of the judiciary. In much the same fashion, conservatives are now building toward a nearly equal predominance.
Keep in mind that when Bush's term is up in January, 1993, Republicans will have held the presidency for 20 of the previous 24 years. Hardly anyone expects Bush to appoint many ideological zealots--Reagan, by and large, has already taken care of that. It's now sufficient for Bush to appoint moderate conservatives--what strategists on the right call "80 percenters." Consider the Supreme Court, where conservatives already seem to have a fairly reliable five-to-four majority. Of the four non-conservatives, three are 80 years old or more--Justices Thurgood Marshall, William J. Brennan Jr. and Harry A. Blackmun. So Bush will probably have the chance to replace one or two, insuring a conservative majority for the foreseeable future.