Even before President Bush nominated his first group of judges to the federal bench, liberal politicians began tossing rhetorical grenades. They spoke of the nominees as "extreme" and "out of the mainstream" prior to knowing their names. Liberals can no longer hide their intent to make laws through the courts. The most controversial court decisions would never get through a Congress that must stand for re-election.
Even though Senate Democrats retreated last week from a threat to exercise veto power over any nominee should he or she come from a state with an objecting Democratic senator, the stand-down was more strategic than principled. Look for these or future nominees - especially to the Supreme Court - to be gone over with the ideological equivalent of an MRI and to be presented as people who want to "return" to such things as back alley abortions with rusty coat hangers.
There are at least two levels on which the Bush team should make its judicial case to the public:
First, history. When federal judges take their oaths, what do they swear to "preserve, protect and defend"? The Constitution. But is it the Constitution as written, or the Constitution as re-written in the minds of the judges for their own ends? President Bush should remind us of what the authors of the Constitution believed.
In Federalist Paper No. 78, Alexander Hamilton wrote that in a contest between a law passed by Congress and the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
For the last 100 years, the Supreme Court has frequently put itself above the Constitution, in effect making law, instead of relying on our foundational document.
One indication of how far the judiciary has moved from the Founders' intentions is Hamilton's notion that the courts were too weak to be a threat to the legislature. A prophet Hamilton was not. But Thomas Jefferson was. Jefferson worried that the federal courts would become the "most dangerous" branch of government because. "...the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution, and working its change by construction before anyone has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account." (Thomas Jefferson to A. Coray, 1823, "The Writings of Thomas Jefferson," Memorial Edition 15:486.)
Second, the media. President Bush should encourage conservative groups to conduct a media campaign supporting his nominees. Liberals have effectively used the media in the past - and will again - to distort the record and integrity of any judge nominated by a conservative president. President Bush has used civility as a powerful weapon against the uncivil. If he can use the same strategy against his political enemies (who will behave like enemies), most of his nominees should be confirmed. The president and his allies must tell the personal stories of his nominees, especially those who have overcome racial and gender prejudice, and how hard work and putting the law before their own interests contributed to their success.
The overriding consideration for a judge, notes former Attorney General Edwin Meese, is for that judge to have "evenly applied the law, and not substituted the judge's own ideas."
Meese tells me the Reagan White House did not see the liberal train coming when Robert Bork, perhaps the greatest mind never to serve on the Supreme Court, was nominated in 1987. Meese says that's because most past confirmation hearings were conducted with dignity and civility.
The Bush White House will have no excuse if it misjudges the intentions of its opponents.
In his 1990 book, "The Tempting of America: The Political Seduction of the Law," Bork wrote: "When courts are viewed as political bodies, we may expect judicial confirmations that are increasingly bitter. We may also expect a constitutional law that lurches suddenly in one direction or another as one faction or another gains the upper hand, a constitutional law that is seen as too crucial a political weapon to be left to nonpolitical judges, and certainly too important to be left to the actual Constitution."
The left "Borked" Bork because he opposes their attempts at "legisprudence" and he believes in the Constitution.