Eternal vigilance is the price of liberty, as we all know, but sometimes vigilantes have to invent bad guys to keep their franchise alive. You could ask some of our Democratic senators, or the ladies at the National Organization for Women.
The Democrats in the Senate who must confirm a successor to Sandra Day O'Connor have wasted no time in signaling that they're spoiling for a fight, and no sooner had Justice O'Connor announced that she would retire when a successor was confirmed -- note that she hasn't retired yet, so technically there isn't yet a vacancy on the Supreme Court -- than NOW, in convention assembled in Nashville, announced that it would march on someone. Anyone.
The only available place to march on in Nashville was the Tennessee state Capitol. "This is our time," Kim Gandy, the president of NOW, told her delegates. "This is our challenge." The delegates returned her admonition with a memorable chant reprised from the Vietnam War: "Hell no, we won't go." They were, presumably, not talking about not going back to Saigon, but about not going back to the alley where the abortionists once plied their grim trade.
"We're going to march on every capitol in the country," she said.
If we take her literally, someone should instruct Ms. Gandy on how the system works: The U.S. Supreme Court, not usually confused with the Tennessee Supreme Court, settles constitutional law, and the U.S. Supreme Court sits not in Nashville, or Topeka or Sacramento, but in Washington. A state capitol is about state law, and doesn't have anything to do with the U.S. Supreme Court, or Roe v. Wade, on which abortion rights are based. Roe is settled constitutional law. But you have to go with what you've got, and we might as well resign ourselves to a fierce and bloody fight over who succeeds Justice O'Connor. The Democrats obviously intend to oppose just about anyone whom President Bush is likely to nominate to the Supreme Court.
Teddy Kennedy, whose harsh denunciation of Robert Bork in 1987 set the tone for modern confirmation hearings, predicts similar warfare this time if the president insists on choosing his own nominee. Mr. Kennedy, who may have been having a bad hair day, famously said of Robert Bork two decades ago that if confirmed to the court he would reopen the back-alley abortion mills and even restore racially segregated lunch counters. He's speaking in similarly harsh language now. (Is the Fourteenth Amendment safe?)
"When the president sent Robert Bork to the Senate Judiciary Committee for nomination [in 1987] . . . it was clear that he was selected primarily because of his judicial philosophy," he said. " . . . Again, this is up to the president. If he wants to pick a judge, we want to be able to support him, but if he wants to have a fight about it, then that's going to be the case."
Sen. Charles Schumer, his Democratic colleague from New York, draws the challenge in stark terms. "I think the No. 1 thing I am interested in are the nominee's views."
This describes something very close to the "litmus test" that everyone, Democrat and Republican, insists that he or she would never, ever impose, because justices of the Supreme Court are expected to apply the Constitution, not their personal views, to the cases that come before them. This, alas, may be a fatally naive view, circa 2005. Says Sen. Schumer: "It would be wrong to put someone on the bench when you know nothing about their views on civil rights, on women's rights, on environmental rights and on everything else."
Some feminists obviously think that the only reasonable replacement for Justice O'Connor is her clone. Entitlement has replaced opportunity as our beau ideal, and some of us have come to think of the Supreme Court as a collection of ordained seats: a Jewish seat, a black seat, a woman's seat (actually we've got two of those now), and now the president is said to be thinking of a Hispanic seat.
We're a stronger America now that Jews, blacks and women are seated on the court, and a better America now that such appointments are no more than commonplace. No doubt soon there will be someone of Hispanic origin on the court, and that's good, too.
But we've come a long way, baby, since Ronald Reagan rocked the republic with the appointment of Justice O'Connor as the first woman on the court. The sky didn't fall, and it wouldn't fall now if the Senate screws up the courage to confirm a Supreme Court justice on the basis of professional qualifications, and not raw sexual, racial and partisan politics.