Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  52 won on several important federalism issues, public aid to parochial schools, and the first amendment rights of organizations that discri- minate against gays. 231 Perhaps Democratic ire over Bush v. Gore is somewhat ameliorated by the Rehnquist Court’s continuing propen- sity to distribute a substantial share of constitutional victories to libe- rals. Imagine how differently conservatives might have reacted to a counterfactual Warren Court ruling in 1968 handing the presidential election to Hubert Humphrey. Where does consideration of these various factors leave us in evaluating the likely impact of Bush v. Gore on the Court’s long term legitimacy? Roughly half the nation probably will believe for the indefinite future that the Supreme Court stole a presidential election from their candidate. Yet, after a brief four years has passed, Bush v. Gore will become an unhappy memory rather than a constant irritant. Thus, Bush seems unlikely to harm the Court’s standing very much, especially if the Justices’ constitutional jurisprudence continues to manifest the uneven political valence that it has in recent years. The one confident prediction that can be made is that the Sena- te confirmation hearings of future Supreme Court nominees are likely to resemble a war zone. 232 This already has been true much of the time since the late 1960s; consider the fierce battles over the nomi- nations of Justice Abe Fortas (for promotion to Chief Justice), Judge Clement Haynesworth and Harold Carswell, Judge Robert Bork, and Justice Clarence Thomas. 233 And, really, why should we not expect it to be so, as the Supreme Court increasingly has asserted jurisdiction over the issues that comprise today’s culture wars? Now that the Justices not only make national policy on abortion, school prayer, and affirmative action, but they also pick presidents, the stakes of 231 Mitchell v. Helms, 530 U.S. 793 (2000) (public aid to parochial schools); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (first amendment right to exclude gays). United States v. Morrison, 529 U.S. 598 (2000) (invalidating Violence Against Women Act); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (invalidating congressional imposition of dam- ages liability upon states under the Age Discrimination in Employment Act). 232 See, e.g., Kaiser, supra note __ (reporting legal historian Howard Gillman’s view that Bush is likely to affect the appointments process for Supreme Court Justices); Stephen Fidler, “U.S. Election: The Final Chapter,” Financial Times (London), Dec. 14, 2000, p.12 (reporting similar views of Professors A.E. Dick Howard and Stephen Wermeil); Scot Lehigh, “So, Class, What Have We Learned? Were the Bush-Gore Lessons Lasting or was it Just Another Battle?,” Boston Globe , Dec. 17, 2000, C1 (quoting political scientist Nelson Polsby predicting a “terrible confirmation battle” over Bush’s first Supreme Court nomination). 233 See Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (1989); John Paul Frank, Clement Haynsworth, the Senate, and the Supreme Court (1991); Laura Kalman, Abe Fortas: A Biography (1990); Jane Mayer & Jill Abramson, Strange Justice: The Selling of Clarence Thomas (1994).