Posted on 07/01/2005 7:30:45 PM PDT by RWR8189
With a Republican Senate, President Bush has the chance to succeed where Reagan failed by getting a conservative constitutionalist confirmed to the Supreme Court.
ON OCTOBER 23, 1987--a day that lives in conservative infamy--Robert Bork's nomination to the Supreme Court was rejected by a Democratic Senate. Now, 18 years later, George W. Bush has the chance to reverse this defeat, and to begin to fulfill what has always been one of the core themes of modern American conservatism: the relinking of constitutional law and constitutional jurisprudence to the Constitution.
The restoration of constitutional government has been the one area in which modern conservatism has had the least success. From Ronald Reagan to George W. Bush, conservative economic policies have been (more or less) pursued, and, when pursued, have been vindicated. From Ronald Reagan to George W. Bush, conservative foreign policies based on American strength and American principles have been--when pursued--remarkably successful. One might even say that, in both economics and foreign policy, the degree of conservative success has been far greater than anyone would have imagined in 1980.
But in the area of constitutionalism, conservative goals have been thwarted, and the key moment of failure, from which conservative constitutionalism has never recovered, was the Bork defeat in 1987. For the last 18 years constitutional jurisprudence has continued to drift away from a sound constitutionalism based on the written Constitution and a proper deference to popular self-government in many areas of public life. Bork's defeat was both a cause and a symbol of this continued downward drift. Now, with one of the two swing votes on the Supreme Court stepping down, George W. Bush has a chance to begin to make constitutional history, as he is certainly attempting to do in foreign policy and, to a lesser degree, in economic policy.
There are two pieces of good news to keep in mind as President Bush ponders his choice. The first is that, by contrast with the situation in 1987, the Senate has a Republican majority. The second is that President Bush can choose from among many, many well-qualified conservative constitutionalists. Although President Bush is understandably fond of and loyal to his attorney general Alberto Gonzales, it's simply a fact that Gonzales does not have the stature of several other possible candidates. I now believe that, though tempted, President Bush will leave his attorney general in his current office.
The president has the luxury of choosing among such candidates as Michael McConnell, probably the leading constitutional thinker of his generation, now serving on the 10th Circuit; J. Michael Luttig, who has served with great distinction for 14 years on the 4th Circuit; the remarkable Janice Rogers Brown, with almost a decade on the California Supreme Court and a recent confirmation to the D.C. Circuit Court of Appeals; as well as other federal and state supreme court judges--some of whom happen to be women (if that matters), and all of whom have strong credentials.
Most of the Democrats will fight any strong candidate. It won't matter if that candidate doesn't have a paper trail, because any nominee will have to make his or her general manner of constitutional thinking clear to the Senate--which thinking will almost inevitably provoke opposition from the left. But such opposition, however vociferous the rhetoric, will not be unstoppable. Indeed, looking at the current Senate, I do not believe that there are 40 Democratic votes to sustain a filibuster against an objectively well -qualified conservative nominee. And in any case a filibuster would be very difficult for the Democrats to defend.
George W. Bush's has been a Reaganite presidency in the areas of foreign and economic policy. He has impressively adjusted Reaganite principles to deal with today's challenges. Now he has the chance to once again follow Reagan's lead by nominating a jurist as impressive as Robert Bork for the Supreme Court. And now he has the chance to surpass Reagan--by getting that nominee confirmed.
William Kristol is the editor of The Weekly Standard.
Not that I'm any fan of McCain...
It would be a very clever move from McCain if he still wants to be the president. The dems filibuster the conservative Bush nominates and McCain then calls the dems on breaking the deal. Then he is seen as not only the moderate who tried to find middle ground, but also the guy who pulled out the nuke-card. Thus, both the base and the mushy moderates will like him.
I can only hope this is at the core of McCain's plans because it would mean we get a good conservative on the seat (assuming, of course, Bush doesn't let us down).
I liked the idea, but someone else pointed out that SCOTUS elder witch O'Connor actually resigned effective only AFTER her successor is confirmed.
Damn her. She will stick a knife in the back of the conservatives any chance she gets. I hope she retires to a long life, because when she finally does die, she'll be down there with Judas and Lucifer in that last circle of Hell.
Bork with his wits would be fine. The USC could learn a lot from him. Even without his wits, he would likely be an improvement over O'Connor.
Additional benefits to this recess appointment would be the fact that the nation would be able to see how misguided and partisan the Dems were at the Bork nomination; how they have become more bitter and partisan even in time of war; and how the conservatives are actually more in line with the values of America, and beholden to the Constitution instead of Party or Ideology. Judge Robert Bork would also be able to show his intellect as well as provide legal firepower to the strict constructionist on the Supreme Court- what with the most recent confused and convoluted rulings on Eminent Domain, and the yes/no/maybe decision on the display of the Judaic/Christian basis for rule of law, not to mention the contempt for Congress with the Schiavo ruling and the contempt for the American people, their voting and their laws in rulings from coast to coast. Pretty good gain for an appointment that would last until the next Senate session- applying pressure on the RINO's in the Senate even in the final days of the appointment.
Bork's too old. We need a young appointee who will serve a long stint, one that will make Stevens' term look like a 3-day weekend.
BTTT
I agree, the Dems may make war but it will be near impossible to defend even with the meida on their side. This will get national exposure and the Dems will have to be on full display "blocking" a good nominee. Another big difference between now and 18 years ago is the changed media. Don't underestimate the influence of the "new" media is shaping public opinion.
I place a lot of stock in the Kristol column for the simple reason that it was Kristol who first wrote that it would be J. O'Connon who would step down...not J. Rehnquist.
It seems that he has some of the best sources in journalism today. I don't believe that he is simply going out on a limb without sourcing.
If track records matter (and, they do), I'd bet that the President will nominate a solid conservative. His appellate nominations have been outstanding.
Agree, Kristol doesn't get it. For the Dems, this is a life and death struggle. They cannot allow a conservative judge, however qualified, to get on the SCOTUS. Not only would it thwart its liberal social agenda, which cannot pass legislatively, but also, it would alienate its rabid liberal base, e.g., Move-on.org. Almost no Dem senator wants to be on record allowing a vote on a conservative nominee.
I agree with you 100%!
Dems will do "whatever they can get away with". They have no principles.
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