Judgment Day: "What President Bush needs to keep in mind with the Supreme Court"

Weekly Standard ^ | 7/18/2005 | Fred Barnes

[KentTrappedInLiberalSeattle]

PRESIDENT BUSH NEEDS TO KEEP two facts in mind as he looks to replace retiring Supreme Court justice Sandra Day O'Connor (and, should he step down, Chief Justice William Rehnquist). The first is that he can win confirmation of almost any conceivable nominee for the High Court, screams of protest by Democrats and hostile media coverage notwithstanding. The second is that he has a promise to keep. Since he began running for the White House six years ago, he has declared endlessly his intention to select judges who interpret the law rather than create it--in a word, conservatives. On this, he has never equivocated.

The number 55 (or 56 if you count Vice President Cheney's vote in the event of a tie) looms large. The Senate majority of 55 Republicans limits Democrats to three possible means of blocking a conservative nominee. 1) Through a procedural maneuver like a filibuster, or by demanding documents they know the White House will never release. 2) By discovering an ethical lapse in a nominee's past. 3) By spooking the president with disingenuous calls for an O'Connor clone, or by claiming every potential conservative nominee is outside the mainstream. None of these is likely to work.

For a filibuster to succeed, Democrats would need the cooperation of three of their seven colleagues who joined the Gang of 14 in limiting the filibuster in cases of judicial nominations. And they would need at least six of the seven Republican gang members to agree that "extraordinary circumstances" have occurred and that a filibuster is permissible. The possibility of this happening is--well, it's all but impossible. Three of the Republicans have already indicated they'd vote to invoke the "nuclear option" to thwart a judicial filibuster. And only two defectors from the Gang of 14 are needed to pass the nuclear option.

As for the document ploy, it is a tool of obstruction, not a form of legitimate inquiry, and everyone knows it. Democrats used it in 1986 in hopes of preventing Rehnquist's elevation to chief justice. In that instance, the Reagan White House compromised, mostly on its own terms. Now Democrats are using the ploy again to drag out the confirmation fight over John Bolton, nominated for ambassador to the United Nations. However, there's only one way an unsatisfied demand for documents can ultimately deny confirmation of a Supreme Court nominee: through a filibuster. And we know a filibuster won't fly.

Should an ethical flaw crop up during confirmation hearings, the Bush White House would probably have itself or its nominee to blame. FBI full-field investigations only go so far. It's up to the president and his aides to make sure a nominee doesn't withhold information that, once disclosed, threatens confirmation. Pre-nomination scrutiny by administration officials isn't foolproof, but the tougher and more probing it is, the less chance of trouble later.

The president should dismiss outright Democratic arguments against naming a serious judicial conservative. In essence, Democrats want a nominee who, like O'Connor, lacks an underlying judicial philosophy and instead approaches legal issues on a case-by-case basis. We've seen what happens with such justices. They drift to the left. And rather than restrain judicial overreach, they take the court deeper into political and social realms that should properly be left to the elected branches of government. That a nominee happens to be a Republican matters little. O'Connor and Justices John Paul Stevens and David Souter were Republicans when they joined the Supreme Court. Their party identification offered only false hope to conservatives about how they would vote as justices.

Nor are Democrats likely to treat any Bush nominee--even an O'Connor lookalike--in the manner in which Senate Republicans dealt with President Clinton's two nominees, Ruth Bader Ginsburg and Stephen Breyer. Those nominees were encouraged by Republicans not to answer questions they deemed inappropriate. And so they declined to answer dozens of questions on race, religion, abortion, the death penalty, gun rights, gay rights, and school vouchers. No Bush nominee will be granted such courtesy. We know this because Democrats have said so.

Now to Bush's promise. From the early days of his presidential campaign, he's vowed to name judicial conservatives, and he's lived up to that promise in picking judges for the federal courts of appeals. In 1999, The Weekly Standard asked Bush to identify the Supreme Court justice who was his model for what a justice should be. He said it was Antonin Scalia, a full-blown conservative. He told the same thing to Tim Russert on Meet the Press.

And the president has used the same formulation for years in describing the men and women he wants to nominate for the federal judiciary, a formulation he repeated as recently as last week in Denmark. "I'd pick people who, one, can do the job, people who are honest, people who are bright, and people who will strictly interpret the Constitution and not use the bench to legislate from," he said. "That's what I campaigned on and that's what I want to do."

There's little ambiguity in this. Bush has promised to pick judges, including to the Supreme Court, who understand the role of judicial power and the limits that must be placed on it. There's a name for such people--conservatives. To pick someone for the Supreme Court who doesn't fit this description would amount to betrayal by the president of his most reliable supporters, the very people who have believed in him the most.

We don't expect the president to break his promise--quite the contrary. True, Bush exacerbated the controversy over the possible nomination of Attorney General Alberto Gonzales, a close Bush friend. He jumped on conservatives who, without attacking Gonzales harshly, recommended that he not be the president's first Supreme Court pick. At the same time, a senior Bush adviser was urging journalists to read Federalist No. 76, in which Alexander Hamilton advised presidents against naming cronies to high positions. Hamilton's view didn't prevail when Bush made Gonzales attorney general, but we suspect it will on the court vacancy. It certainly should.

[EQAndyBuzz]

Get it over with. Appoint Mark Levin and put the final stake through the hearts of what is left of the Democrat party.

[Graybeard58]

Democrats would need the cooperation of three of their seven colleagues who joined the Gang of 14

And that means the Republicans will only need two to return to the fold and Cheney as the tie breaker.

I think McCain will see the error of his ways and vote like a Republican on this. One more and we are over the top.

I can't wait to hear drunk fat ted and others crying.

[xzins]

Barnes nails it.

The President has promised. There is no issue more dear to my heart and to America. The War on Terror can even be said to be captive to the whim of the black-robed oligarchs.

We must replace them with constitutionalists.

[traviskicks]

looks like this is a repeat of Bob Novaks column.

For what its worth, I'm for JRB:
http://www.neoperspectives.com/janicerogersbrown.htm

[Bear_Slayer]

I'm for JRB:

Judge Roy Bean?

:-)

[Raycpa]

There will be a filibuster and there will be the ability to nuke it. The only question is will there be another face saving deal implemented before the nuke is exercised.

[KentTrappedInLiberalSeattle]

"For Texas... and for MISS LILLY LANGTREE!" :)

[Bush gal in LA]

''put the final stake through the hearts of what is left of the Democrat party.''............(luv that line)! LOL

[advance_copy]

If the RATS filibuster a Supreme Court nomination, they will get pulverized in the 2006 election. President Bush has said he will nominate a strict constructionist in the mold of Scalia or Thomas, and that nominee (or those nominees) WILL be confirmed; otherwise the RATS will pay dearly. If they try to filibuster, we win. If they don't, we win. Whoo hoo!

[advance_copy]

President Bush has said he will nominate a strict constructionist in the mold of Scalia or Thomas

And remember, this President says what he means and does what he says.

[Cicero]

This is pretty much what I've been saying all along, and I'm glad Fred Barnes is saying it now.

Bush has let us down on some things, but so far he has stood firm on judicial appointments. Now they have to go all out and push them through, because time is running out.

[Ol' Sparky]

"That's what I campaigned on and that's what I want to do."

If the President keeps his word, he'll leave a lasting legacy and might be remembered as Ronald Reagan is.

[grondram]

I think Barnes is over-simplifying. The stakes are higher for the SCOTUS than for any other appointment and thus you can't count on the gang of seven behaving the same way...

I have a question - why not appoint a supremely qualified guy who is also totally experienced with the worst that can be thrown at a nominee... somebody who won't surprise in a negative way because he has written extensively on all the deep questions of our day and conssitantly comes out on the ethical and consitutional side --- Robert Bork.

>>Robert Heron Bork (born March 1, 1927) is a conservative American legal scholar and former judge who advocates an originalist interpretation of the United States Constitution.

Robert Bork, in books such as The Tempting of America, argues that the Constitution should be interpreted based on the Framers' original understanding of the constitutional text. He is an advocate for judicial restraint, reiterating that it was the Court's task to adjudicate, not to legislate, from the bench. He has written: "We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own." Bork's views have influenced the legal opinions of conservative judges such as Antonin Scalia and Chief Justice William Rehnquist.<<

http://en.wikipedia.org/wiki/Robert_Bork

[Flux Capacitor]

The best choice for the Supreme Court, as portrayed by the worst. :)

-Dan

[Tom_Busch]

Maybe I'm over-simplifying things, but even if Bush gets two conservatives, I don't think it changes that much really. Neither O'Connor or Rehnquist voted for property seizures in Kelo v. New London. It seems to me that one of the liberals has to be replaced too, or we get more of the same.

I just wonder if Stevens and Ginsburg will be able to hold out till Bush is gone. If so, the election for POTUS in 2008 will be huge.

[Lexinom]

Worse yet, imagine if the confirmation is in process DURING election '08.

[grondram]

There are some 5-4 splits that could be effected... like abortion issues.

[bimbo]

And remember, this President says what he means and does what he says.

I can even make the "balance" arguement for Bush ... A strict constitutional constructionist is needed to balance those ideologues Clinton appointed (Breyer and Ginzberg).