On Court nominees, now is no time for Bush to relent

Ross Mackenzie
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Posted: Jul 07, 2005 12:00 AM

If you're just back from Jupiter or something, you might not have heard that Sandra O'Connor has told President Bush she'd like to retire from the Supreme Court. And even before the president has offered a name in replacement, those great engines Pro and Con were revving up.

We're talking here about vast sums of cash, war rooms boasting legions of myrmidons at banks of computers probing the leavings of even the remotest prospects for the minutest Sign of - what? In the old lingo of Soviet dialectics, the word was deviation from the ideological norm.

And so, we return to where we have been - with Robert Bork, with Clarence Thomas, with appellate court nominees almost too numerous to count during the past four years. Indeed, it reaches back still further - to the likes of Clement Haynsworth and William Rehnquist himself.

Chief Justice Rehnquist has not announced his retirement. But he suffers from thyroid cancer and its attendant treatments - and anyone who has experienced them knows only too well the tribute energy and fortitude must pay to radiation and chemotherapy. Not even Rehnquist can guess how long he can keep the court's pace. Likely he will have to give it up sooner rather than later.

If sooner, we may be revisiting the hour of his own confirmation hearings three decades ago - held generally in tandem with those for Lewis Powell. An inchoate leftist cohort roughed up Rehnquist; Powell glided across the goal line unscathed. An early Rehnquist retirement could give us dual nominations once more - and a reprise of 1971.

The intervening years have only escalated the rhetoric - and indeed the consequent war. For war, ideological war, is what we have here, and because it is a war for power it is war without stint or limit, war of the most vicious sort.

The Democrats and the American left are losing power in a number of their historic bastions. Most notably, they no longer possess Congress and the White House - though through unity in the face of a fractured opposition, and through deft exploitation of the system, they retain remarkable minority strength in the Senate. From there they fight fiercely to maintain their hold on the federal judiciary - their last redoubt.

Neither side - left or right - has a monopoly on goodness and virtue in this war, but in the battles over judicial nominees, the left is the consistent attacker.

So, as with Messrs. Bork and Thomas most famously, the left has slimed a long line of Bush administration nominees to the appellate courts with insults, lies, pettiness and innuendo most vile. The best nominees, the smartest and the most decent, seem to face the worst odds of confirmation. Some never make it; a compromised Republican Party bails out on others.

There is little reason to believe it will be any different with any nominee (or nominees) to the Supreme Court.

Washington hasn't always been that way, as former Johnson administration staffer Jack Valenti wrote recently: "The cords of collegiality that used bind the members of Congress to one another - and to the president - haven't just frayed; they've snapped." But we have arrived at the moment, in Bork's words, when, through their libertine reinterpretation of the Constitution, various court majorities have "gone well outside anything that's in the Constitution and begun to decide matters according to (the justices') preferences. When that happens, when (the court) becomes a political institution, it becomes a political prize and both sides will fight for it."

Despite the recent Senate "compromise" over judicial nominees, a bitter and protracted battle seems likely. Even now, key Democratic senators are redefining the agreement's "extraordinary circumstances" clause - as it relates to nominees to the Supreme Court - to mean the nominees' deviationist (from leftism) point of view on anything under the sun.

Sen. George Allen termed the Senate deal "disappointing for all of us who believe in the principle that persons should be accorded the fairness and due process of an up-or-down vote. Everyone should also clearly see that ultimately, nothing has been settled when a vacancy arises on the U.S. Supreme Court." The two sides are about to lock swords.

George Bush summarized his views on Supreme Court nominees this way, in an October, 2000, debate with Al Gore: "I'll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy. I don't believe in liberal, activist judges. I believe in strict constructionists. And those are the kind of judges I will appoint." More recently, he has cited Justices Antonin Scalia and Clarence Thomas as "the types of judges" he most admires.

That is what drives the left up the wall. He has nominated Scalia/Thomas types to the appellate courts, and vacancies on the Supreme Court are not times for the president to relent. The current handicapping is nothing better than guessing. The Democrats will filibuster just about anyone the president chooses, so he should choose well.

As a replacement for Justice O'Connor, the president should nominate the smartest, cleanest, most eloquent, most tested, and intellectually toughest strict constructionist in the land. And in the event of a Rehnquist retirement, the president should nominate Scalia or Thomas as the next Chief Justice - and then make a follow-on nomination matching his first.

This is hardly the moment for the president to reward with anything less than the best the vituperative Senators who have unconscionably mauled him and his lower-court nominees every step of the way.