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Making the “Right” Judgment
O’Connor’s Successor Should Be a Constitutionalist...
[Carol Platt Liebau] 9/19/05

Now, at the conclusion of the hearings for John Roberts to become Chief Justice, Democratic senators are confronted with a problem. The brilliance of the nominee’s intellect and the calmness of his demeanor, coupled with his predictable (and appropriate) refusal to pre-decide issues that might appear before the Court, have offered his adversaries few grounds for principled opposition.

Doubtless aware that chances for blocking Roberts’ confirmation are virtually nonexistent, Democrats have begun to strategize about how to approach the confirmation vote with only one objective in mind: Influencing President Bush’s decision-making process as he considers his next nomination – the replacement for Justice O’Connor.

It’s not hard to recall the rhetoric in the run up to the Roberts nomination. Democrats have presented a theory of Supreme Court “balance,” arguing that Justice O’Connor, a “moderate” voice, shouldn’t be replaced by a jurist in the mold of Justices Scalia or Thomas (a consideration they conveniently ignored when Ruth Bader Ginsburg was nominated to succeed Justice Byron White).

Those calls now are certain to resume, accompanied by faux-earnest entreaties for a “unifying” nomination in the wake of the Hurricane Katrina disaster. But President Bush needs to ignore the pleas of his adversaries and fulfill his campaign promise to nominate justices like Scalia and Thomas. Even setting principle aside, every practical consideration demands the nomination of a strict constructionist.

First, the issue of judges is of paramount importance to the President’s conservative base, where grumbling has grown steadily louder about both the volume of government spending and the failure to address the issue of illegal immigration. Given his low poll numbers – temporary, doubtless, but still real – it would be unwise for the President to alienate virtually the only portion of the electorate that remains steadfast in its support.

That’s particularly true given that, even if Democrats were pleased by the President’s next selection, their satisfaction is unlikely to translate into political support on other matters ranging from Social Security reform to the war in Iraq. If the rise of the new, blogosphere-based left wing special interest groups like MoveOn.org has accomplished anything, it’s been to solidify a permanent opposition mentality that would create ongoing political danger for any Democrat who adopted a new tone of cooperation and reconciliation, even in the wake of a moderate to liberal Supreme Court nomination.

Not that the Democrats would be inclined to praise any nominee that Bush selects. Even as they consider John Roberts, Democratic senators – particularly those from less liberal states – are hamstrung by competing demands: On the one hand, there are the constituents. (According to recent polls, nearly six in ten Americans want to see Roberts confirmed.) On the other is the well-heeled and influential liberal legal lobby, ranging from People from the American Way to the ironically-named Alliance for Justice.

These groups, with plenty of cash to hand out for politicians’ reelection campaigns, are screaming for blood – even though acceding to the demands for all-out political opposition to Roberts would be tantamount to Democratic self-immolation. Because this nominee’s popularity may force some Democrats to support him, it may likewise prompt many to resist the next nominee with redoubled vigor, in order to recover their standing among the left wing legal groups.

This dynamic suggests that the next nomination fight is likely to be a tough one, whoever the nominee is. And that being the case, the President might as well make the struggle count for something.

Putting a solid constitutionalist on the Court is a legacy that will live far beyond President Bush’s term. With his next Supreme Court nominee, President Bush has a choice: He can heed the claims of his adversaries and nominate a justice who will participate in the arrogation of political power by unelected judges, or he can choose a strict constructionist, and help return the Supreme Court to its proper role and function in American life. tOR

Columnist Carol Platt Liebau is a political analyst, commentator and tOR / CRO editorial director based in San Marino, CA. Ms. Liebau also served as the first female managing editor of the Harvard Law Review. Her web log can be found at CarolLiebau.blogspot.com

copyright 2005

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