There are some interesting and particularly scary parallels between 2004 and 1984 (the year, not the Orwell book, although a substantial argument could be made for the latter). But there are some differences, too. For those of you who weren't politically conscious participants in the adult industry 20 years ago, you may find this eye-opening. For those who were, you'll probably load up the Legal Commentary email inbox.
In 1980, Ronald Reagan dumbfounded pollsters by ousting incumbent Jimmy Carter, grabbing 50.7 percent of the vote. President Carter posted a dismal 41 percent showing, and Republican-turned-independent John Anderson likely stole most of his 6.6 percent share from Reagan, who slammed Carter in the Electoral College 489 to 49.
In 2000, it took the Supreme Court to decide — totally along party lines — that George W. Bush would upend two-term vice-president Al Gore, notwithstanding losing the popular vote to Gore by about 0.5 percent. Bush would have lost the election but for Ralph Nader, who garnered less than 3 percent of the vote, but enough to hand Florida and the Electoral College to Bush by a 271-266 margin. If Al Gore had won his own state, he would have won the election.
OK, you've read all of that in the newspaper. But not what follows.
Like W, Reagan had a very conservative agenda. But Reagan's roots were in the movie business; W's were from a silk-stocking, Texas Republican family, having been "saved" from a life exemplified by a drunk-driving arrest and more recently, reports of cocaine use during the same period. Newsweek magazine exposed W's religiosity in a cover story, "Bush and God," where he was characterized as more concerned about his morning Bible readings than his morning security briefings. Reagan was America's first divorced president, although certainly committed to Nancy. W projects the epitome of a stable family man.
Clearly understanding the power of the conservative Religious Right, Reagan went after that group with a vengeance. Eyeing the ballot boxes in the 1984 election, Reagan courted its members, and they joined the ranks of the masses that re-elected Reagan in 1984's landslide election, winning almost 59 percent of the popular vote, with opponent Walter Mondale garnering only the electoral votes of his home state and of the District of Columbia.
Reagan rewarded the Religious Right by appointing Edwin Meese to the attorney general's post. By contrast, W jumped right in, appointing equally if not more conservative John Ashcroft at the beginning of his presidency. Reagan did not bring in Meese until his second term.
Both Meese and Ashcroft spearheaded efforts to suppress erotica, Ashcroft with the PROTECT Act and Meese with his Attorney General's Commission on Pornography and its Final Report. In Reagan's first term, the only significant legislative effort was the eleventh-hour trick of Sen. Jesse Helms — an anti-pornography crusader in his own right — adding obscenity as a predicate offense for RICO. It was also in that period that Congress enacted the first labeling and record-keeping requirement (which was struck down and replaced by the current one), along with a battery of other anti-erotica legislation that was buried in the hundreds of pages of the "Anti-Drug Abuse Act of 1988" and known as the "Child Protection and Obscenity Enforcement Act of 1988." As you might guess, it was, as a practical matter, much more about obscenity enforcement than about child protection.
It is difficult to imagine how Congress could now further strengthen federal anti-obscenity laws, given the PROTECT Act and the residue from the Reagan administration. However, there are a number of things that could be done — all of which are unthinkable and some of which are unconstitutional under current Supreme Court precedents. This column will refrain from identifying any of the unthinkables because the idiots that support such things sometimes read this column. As to those laws that Congress might gin up that that would not pass muster with the current high court, don't forget W's court-packing ideas, which will be addressed below.
Having covered legislation, the next topic — before thinking about the Supreme Court — is the Attorney General, who ultimately is in charge of all federal obscenity prosecutions. W's appointment of John Ashcroft as attorney general was clearly designed to reach out to the Religious Right, and several of Ashcroft's actions during his tenure were clearly designed to get its members to the polls in 2004 — and they came in droves. Immediately after the election, Ashcroft "resigned," though we don't know what went on behind closed doors that may have impelled that resignation. One pundit suggested that Ashcroft was installed as nothing more than bait for the 2004 evangelical voters; and that once the polls closed he was expendable, in favor of the person W really wanted, Alberto Gonzales. W's nomination of Gonzales is predicted to sail through the Senate, and probably will have done so by the time this hits the streets.
Why Gonzales? Certainly the fact that he was the first line of legal protection for W as Texas governor, and for his first term in the White House, figured into the nomination. Gonzales' name also has been tossed around as being on Bush's "short list" of potential Supreme Court candidates. But the suggestion that Gonzales is "quietly pro-choice" might take him off the list, so the attorney general's post will be his reward.
Gonzales has never been an outspoken supporter of the Religious Right, nor does he have any track record of opposition to erotica. So, will he be an improvement over Ashcroft? Perhaps; anything would! However, remember history: Meese's term ended in August of 1988, and he was succeeded by Richard Thornburg who, as it turned out, offered no relief. He continued to fuel Meese's runaway locomotive, sponsoring the 1988 obscenity-law upgrade and supervising the DOJ's pillage of the adult mail-order and video industries, which lasted until the Bush I regime was ousted in the 1992 presidential election. Nothing suggests that history will not repeat itself with Gonzales and his jam-packed and well-financed anti-obscenity crew.
Now, we go on to the Supreme Court. Immediately after this year's election, W announced that he had earned some "political capital" from his roughly 3 million vote margin, and planned to spend it; and though just how much he has is unclear, he is sure to attempt to spend much of it on the Supreme Court. Chief Justice Rehnquist is in failing health, and is the most likely candidate for resignation in the near future. It is almost certain that, regardless of health, he will resign during W's tenure, and there is good reason to believe that he will retire before the 2006 election when, hopefully, the Democrats will re-take the Senate (which, of course, must approve Supreme Court nominees).
The chief justice — whose title, by the way, is the chief justice of the United States, not of the Supreme Court — has only one vote on the Court, and has some other, less glamorous jobs, such as presiding over impeachment trials and administering the oath of office to the president every fourth January 20th. However, the power of the chief justice exceeds the associate justices in one very important way. Although Chief Justice Rehnquist happens to be the senior justice on the court, the chief justice always has top seniority, regardless of who has been there the longest. That seniority brings with it the authority to assign opinions (unless the chief justice is not in the majority), preside over deliberations and vote last. That means that the chief justice can shape the result of a case by refining his position to mollify a swing justice, brokering his way to a majority. Chief Justice Burger is said to have done exactly that so as to change the result in Miller v. California. Insiders have said that the majority originally shared Justice Brennan's opinion, concluding that the Constitution prohibits any governmental regulation of obscenity so long as only consenting adults were involved.
A vacancy in the chief justice's seat also means that the president has the opportunity not only to appoint the new chief by elevating an associate justice, but also to fill the resulting vacancy. Ronald Reagan did exactly that when Chief Justice Warren Burger retired in 1986. Chief Justice Burger was then arguably the most conservative member of the court, excepting possibly then-Associate-Justice Rehnquist, who President Reagan tapped for the chief justice position. One school of thought is that W will imitate Reagan's 1986 daily double, elevating ultra-conservative Associate Justice Scalia to chief, and appointing a replacement for the vacated associate position. There is a possible disadvantage to W doing that, however, because it will force two Senate confirmation hearings, one for the promotion and one for the nominee to fill the resulting vacancy. In those hearings, Democrats and Republicans certainly will square off over the issue of Roe v. Wade, and the wake of even one such battle could substantially boost the Democrats in the 2006 senatorial elections. Or W may go outside the existing Court for a new chief justice, though that is unlikely
The real war in the Senate is bound to take place upon the resignation of one of the justices that supported reaffirming Roe v. Wade, and Justices Stevens and O'Connor come to mind. Justice Stevens will turn 85 this April; he will be nearly 87 when the next Senate is sworn in 2007. Justice O'Connor will be 75 this March, but has had health problems. Flip those two justices and Roe v. Wade could flip, too — from 6-3 for it to 5-4 against it.
Worse, loss of only Justice Stevens would be a disaster for erotic expression and related issues. For example, changing his vote to a Scalia clone likely would undo Alameda Books (adult zoning) and Lawrence v. Texas (striking down criminal punishment for homosexual conduct).
It's going to be a wild ride.
(Clyde DeWitt is a partner in the Los Angeles-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN's offices, at his office at 12121 Wilshire Blvd., Suite 900, Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
