WSJ: After O'Connor-President Bush owes his supporters a nominee in the Scalia-Thomas mold.

opinionjournal.com ^ | July 5, 2005 | Editorial

[OESY]

...Justice O'Connor is being hailed as the Court's "swing" Justice, but her legacy is more complicated. She has been a conservative on property rights and federalism, most recently in her Kelo dissent, where she took vigorous issue with the Court's extension of government's eminent domain power to include the taking of private property for private economic development. Replacing her with a "moderate" could actually mean a more liberal court on those issues.

Where she drifted left over the years--and where her written opinions often sowed confusion--was on social issues, notably church-state and racial matters. She focused more on the facts of a particular case than on determining bright-line rules that citizens could understand and legislatures could follow in the future. Before the Ten Commandments decision came down last month, Beltway wags joked that Justice O'Connor would find five of the 10 unconstitutional.

Her muddled 2003 rulings on racial preferences at the University of Michigan is a case in point....

Any nominee will provide a test of the recent Senate deal barring a filibuster except in "extraordinary circumstances." If words mean anything, they ought to allow a filibuster only in the case of something truly unusual, such as an ethical scandal. They shouldn't include judicial philosophy, although the left is already trying to re-define them that way....

Justice O'Connor served 24 terms, and the average tenure for recent Justices is 19.5 years, or five Presidential terms, so the stakes are enormous. For liberals, the courts have become the preferred way to win policy victories now that Americans are consistently rejecting their agenda at the ballot box. Unlike Barbara Jordan and her colleagues 25 years ago, modern liberals are unlikely to be satisfied with a nominee who is a "good lawyer and believes in the Constitution."...

[OESY]

QUOTE:

When President Reagan nominated Sandra Day O'Connor for the Supreme Court in 1981, former Texas Congresswoman Barbara Jordan, a Democrat, declared, "I don't know the lady, but if she's a good lawyer and believes in the Constitution, she'll be all right."

[Jeff Head]

Nominate Janice Rogers Brown ...or really smack the libs up side the head and renominate Bork.

[An Old Marine]

believes in the Constitution

Anyone who believes in the Constitution is by definition and unacceptable Justice to Liberals.

[Brilliant]

The problem is that you can't be certain that you're getting a conservative if all you do is look at their judicial record. We have 7 GOP appointed Justices on the Supreme Court who were chosen because of their supposedly conservative records, but only 3 of them turned out to actually be conservatives, and 2 of them are the two most liberal members on the Supreme Court.

The President has got to know the nominee personally, and know how he thinks.

[RangerM]

At least Justice Brown would allow us to retain our property rights. This is apparently what the libs have against her. She allowed a private hotel owner to retain his (hers?).

[A Jovial Cad]

Forget all of that. Nominate Ann Coulter, and watch the Emergency Rooms from coast-to-coast start to fill up with hysterical leftists having uncontrollable panic-attacks as the news spreads...

[Eric in the Ozarks]

What a wonderful idea. Too bad she's not a jurist.
Of course, there was a time when bright young people could be admitted to the bar based on their knowledge of what's right and wrong.

[Rutles4Ever]

Justice Diana Sykes of the 7th Circuit in Chicago is a sleeper nominee. She's solidly constructionist and has already been through the ringer when she was confirmed for the 7th. She's a member of the Federalist Society and is 49 years old... These are just a few reasons why Sykes could be our woman in black:

Note, this is from a site that OPPOSED her 7th nomination, so accept these as compliments!

Sykes Profile

- Justice Sykes has shown she cannot separate her apparent anti-abortion rights sentiments from her role as a judge. Although known as a "law and order" jurist, she expressed extraordinary sympathy for two anti-abortion protesters while presiding over a trial in which they were convicted of blocking entry to a Milwaukee abortion clinic by binding their legs with welded pipes to the front of a car. Both protestors had to be forcibly removed by firefighters with blowtorches, but during sentencing, Justice Sykes commended the defendants for their "fine characters" and "pure" motivations, and expressed her "respect... for having the courage of [their] convictions and for the ultimate goals [they] sought to achieve" by their blockade. She sentenced the defendants, who together had been arrested 100 prior times for anti-abortion protests, to 60 days in jail with work-release privileges.

- Otherwise, Justice Sykes often disregards the rights of the accused. She refused to overturn a conviction in a case where one of the jurors could not speak English. The juror had stated as much on his juror form and the jury itself sent a note to the trial judge to that effect during deliberations, but the defendant was convicted anyway. She was the only justice to vote to uphold the conviction. In another egregious case, she was the sole dissenter when the Wisconsin Supreme Court ruled that evidence gathered as a result of interrogating a person in custody who had not been issued a Miranda warning had to be excluded from trial.

- Justice Sykes was in the minority when she voted that the state of Wisconsin had no responsibility to provide an adequate public school education. Although the court held that the school funding program in effect did not completely deprive students of a basic education and therefore did not violate the state's constitution, the majority decision did set forth the standards that school funding had to meet in the future, allowing future challenges.

- Justice Sykes was made a trial judge after minimal experience in the courtroom and was apparently elevated to the Wisconsin Supreme Court for ideological reasons. She has been active for many years in the Federalist Society, a group of conservatives and libertarians dedicated to combating "orthodox liberal ideology" and promoting "traditional values." When asked about her judicial views at her confirmation hearing, including those on the right to privacy and Roe v. Wade, she declined to answer, although she has shared those views as a public speaker.

[Congressman Billybob]

I thoroughly agree with the WSJ. Or, more accurately, they thoroughly agree with me. I was in print with these points before they were. Yes, O'Connor was once a Justice who believed in and enforced the Constitution. Yes, we need three more Justices who will do exactly that, beginning with this appointment.

Congressman Billybob

Latest column: "Replace Justice O'Connor -- But Which One?"

[LS]

Sorry, treat every nomination as though it's YOUR last, not the last. This should be a die-hard conservative, then pray that some of the liberal members of the Court . . . well, pray that God deals with them as they deserve, and soon :)

[1Old Pro]

I agree, pick the peson who you feel (know) will be a conservative who will properly make decisions based on the consitution. Another Scalia or Thomas would be the model.

[Dad yer funny]

Fox has Eleanor Clift babbling and endorsing Gonzales , is this "rope-a-dope" on both sides of the political spectrum??

[marlon]

As a matter of fact Ann Coulter is an attorney who specilizes in constitutional law. I think she also clerked for Thomas.

[griswold3]

Just read an interesting post in another forum. Congress should reform the SCOTUS by imposing a majority vote to be at least 6-3, a 5-4 vote would be considered a non decision.
Souter and Kennedy have been a disaster for conserving this country and the constitution it is founded upon. The fight is for keeping the republic.

[bandleader]

I'm for Robert Bork!!!

[Congressman Billybob]

Yes, I just saw that Eleanor Clift routine. For her, a flaming liberal, to "endorse" Gonzalez, tells me two things. She believes the Dem-libs in the Senate, now led by Ted Kennedy, will NOT be able to block any Bush nominee by filibuster. Second, it tells me that she is willing to take a "moderate" conservative because she fears a real conservative, like Garza or even Miranda, will be the nominee and will be confirmed.

She knows on the nose count in the Senate the Democrats will lose this time. So, she's gone to her fall-back position.

Congressman Billybob

Latest column: "Replace Justice O'Connor -- But Which One?"

[LiberationIT]

Justice O'Connor served 24 terms, and the average tenure for recent Justices is 19.5 years, or five Presidential terms, so the stakes are enormous.

This is a heck of a lapse for the WSJ editorial page. The sentence should read "Justice O'Connor served 24 years or six Presidential terms, and the average tenure for recent Justices is 19.5 years, or five Presidential terms, so the stakes are enormous."

Yep, the stakes are high, but O'Connor hasn't been there for 24 Presidential terms (as much as 96 years, not adjusting for shortened terms.)

[mosquitobite]

LMAO at the hysteria a Coulter nomination would invoke!

[Dad yer funny]

yeah , here's hoping it is Garza , Luttig or Miranda , BTW , I can't "get a read" on what Fox is doing , they just had that character Spillar on , giving her a forum with NO BALANCE!!! Where is Liz Trotta , [???] I know femWACKO rebuttal/stuff isn't her strong point ,"hey Ailes ,looks like the staff is just throwing things against the wall , whatever sticks,huh?"

[LS]

John, I plan to write an analysis of this later in full, but it is interesting that one of the "buzz phrases" I heard over the weekend is that Bush, while he has appointed justices who are ethnically and racially diverse, has not appointed "ideologically diverse" [!] justices.

I can tell the Libs now, be VERY wary of that line of argument, because once that can of worms is opened, affirmative action at the universities goes out the window as you know it and colleges MUST appoint "ideologically diverse" faculty to comply with Aff Action!!!!!!

[Eric in the Ozarks]

Interesting. In order to be on the High court, she would have to actively practice and to have served as a judge in an appellate level.

[marlon]

I don't believe your correct. I believe, and I could well be wrong here, that you don't even have to be a lawyer to be named to the Supreme Court. Not likely to happen of course but I do think that it is allowable.

[Cyber Liberty]

Don't even have to be a lawyer at all. There are no specific qualifications set out in the Constitution.

[ConservativeDude]

unbeleivable how the first thing out of their mouths is always about abortion....read any article and that is where they go first when they start to discuss "issues" and cases...every single time.

[Eric in the Ozarks]

Amazing what you learn on FR.

[A Jovial Cad]

In order to be on the High court, she would have to actively practice and to have served as a judge in an appellate level

You are incorrect, sir.

Article II, Section 2, Clause 2 of the Constitution of the United States of America specifies the only requirements by which a person may be nominated to the Supreme Court: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court*, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments"

The President could nominate the first person with a name that struck his fancy in the phone book, if he wished. The only Constitutional requirement to be placed before the Senate for consideration as a Supreme Court justice is that the President nominate you, period.

*emphasis added.

[Friend of the Friendless]

A Supreme Court justice does not even have to be a lawyer. There are many examples of individuals appointed - Earl Warren (ugh! maybe that's why he turned out to be such a disaster) who were never even judges before being appointed to the USSC.

[Eric in the Ozarks]

So I am and bless you for pointing out this obscurity in US law.
No legal track record might even be an advantage when the Judicial Committee holds hearings.

[Eric in the Ozarks]

I thought Warren was a judge in California prior to his elevation to the High Court.

[A Jovial Cad]

Absolutely right. Earl Warren was the longtime Governor of California when President Eisenhower appointed him, not a judge or "justice" of any sort.

All of which reminds me of one my favorite Eisenhower stories. After he left the Presidency, a reporter/historian (I can't remember off the top of my head which, and understand I'm paraphrasing here) asked him: "Did you ever make any mistakes while you were President?" Ike responded: "Yes; and both of them are sitting on the Supreme Court."

[Theodore R.]

The popular Warren was attorney general of CA, when he proposed Japanese internment. He was governor when Dewey chose him for the v.p. slot, a decision Dewey later regretted. Warren could not win CA for Dewey, but Dewey would have lost even with CA.

[Eric in the Ozarks]

Thanks for the refresher.

[Theodore R.]

GWB just said that he does not appreciate attacks on Alberto Gonzales from wary conservatives. He could be signaling that Gonzales is his pick -- said he will do the interviews himself, something Reagan and GHWB apparently did not do.

[Eric in the Ozarks]

Or maybe he's saying, "I heard yall."

[Tuscaloosa Goldfinch]

Wasn't Chief Justice Warren a non-attorney?

[Tuscaloosa Goldfinch]

ooops == (another note to self) -- READ THE THREAD, TG, BEFORE COMMENTING!

[Eric in the Ozarks]

He was governor of California... Don't know if he was a lawyer.