Rich Tucker

As Dinesh D’Souza wrote at the time, conservatives should have fought back. He says Bork should have replied, “Sen. Kennedy, your question presumes a profound lack of faith in the American people. Do you imagine that the American people lack the good sense to pass laws under which they can live?” Instead, the right allowed Kennedy’s baseless attack to stand, and it set the tone for Bork’s ultimately unsuccessful hearings.

The first President Bush took a lesson from those hearings -- the wrong lesson. In her new book “Supreme Conflict,” ABC News legal reporter Jan Crawford Greenburg writes that Bush considered nominating Edith Jones to the high court, but settled instead for David Souter because Jones’ “conservative credentials would also mean more of a fight, and Bush didn’t want that.”

Souter was indeed “clean and confirmable,” but he’s also been a major victory for liberals, a victory they achieved because conservatives weren’t willing to fight for their principles.

Compare that to what happens when we do fight. In 2005, George W. Bush nominated Samuel Alito to the Supreme Court. “The interest groups and the Democrats on the Judiciary Committee believed they were armed with enough information to derail Alito,” Greenburg writes. But it didn’t happen. Alito was so smart and so capable that, by the third day of the hearings, liberals realized they’d lost. In desperation, Kennedy, seeking to impeach Alito’s character, tried to stall the hearings by forcing the committee into executive session. “I’d want to give notice to the chair that you’re going to hear it again and again and again and we’re going to have votes of this committee again and again and again until we have a resolution,” he sputtered. This time, though, the tough talk didn’t work. The hearings continued, Alito was confirmed, and today he’s issuing reliable conservative decisions from the Supreme Court.

As of February, there were 17 openings in federal appellate courts, but President Bush had only five nominees pending. He should act swiftly and nominate conservatives for all open seats. That will lead to a battle, of course, but it’s a battle of ideas, and that’s one that the right can win.

Rich Tucker

Rich Tucker is a communications professional and a columnist for