Monday, July 11, 2005

WaPo On Target

In an editorial, the Washington Post makes its case for how the president ought to pick a replacement for Justice O'Connor. Read the whole thing, but here's a tease:

"In the past, presidents have nominated justices to the Supreme Court who have been received with a national outpouring of acclaim. American society is probably too politically riven for President Bush to manage such a triumph today. Still, broad-based support should remain Mr. Bush's critical goal as he contemplates the replacement of Justice Sandra Day O'Connor. There is an enormous difference between a judicial nominee confirmed on a party-line vote and one who receives strong bipartisan backing. This requires of Democrats a fair-minded assessment of the president's choice. Yet it also requires that Mr. Bush search for a nominee who meets the standards of those acclaimed selections."

The editorial suggests that those standards are: "professional qualifications of the highest caliber," judicious temperament, belief in the stability of precedent, and this:

"Mr. Bush has made clear that he is looking for a nominee who will strictly interpret the Constitution and not be looking to discover novel rights within it. This position will have greater integrity if he nominates someone who applies such a skeptical eye across the board; fidelity to the Constitution as the Framers wrote it can be a position of high principle or it can be a cloak in which to wrap the promulgation of one's policy preferences under the guise of law. A nominee who has a track record of rejecting claims he or she finds politically congenial will - and should - have an easier time than one whose fidelity to the law is circumstantial. Moreover, insisting on constitutional rulings supported by the document's text, history and structure need not mean insisting on cramped or anachronistic treatment of law that was written in general terms to remain relevant to a changing society."

All those standards are, to say the least, reasonable. The last is perhaps most important, and particularly the last sentence of the paragraph. It is vital to recognize this point, as the Court's current Centrists clearly do.

Finally from the Post: "Liberals and Democrats, having lost the election, cannot reasonably ask Mr. Bush to nominate a justice to suit their tastes. But that doesn't mean a full-fledged war is inevitable. Even in the current environment, there must be a potential nominee who will satisfy the president but offend a minimal number of his foes. The president would do great service if he could find such a person."

If "offending a minimal number of his foes" meant that President Bush would have to settle on a mediocre nominee, I would not agree that he should do it. But I don't believe that it is the case. There are any number of well-qualified, judicious, pragmatic, non-activist conservatives who would make excellent justices; it's now up to the president to nominate one.


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