When Ronald Reagan first nominated Sandra Day O’Connor, Democratic Senator Barbara Jordan said “I don’t know her, but if she’s a good lady and believes in the Constitution she’ll be alright.” Today, such an attitude sounds about as antiquated as “Leave it to Beaver,” but apparently there once was a time when adherence to the constitution was the only litmus test a judge needed?that and the blessing of the President.
Not anymore. Within minutes of O’Connor’s resignation, the activist camps on both sides were ready for war: the liberals because they are reflexively opposed to Bush; the conservatives because they believe that they might be able to do what the constitution says they can do once they win an election, and, they see this as an opportunity to replace a dedicated swing-voter with a more reliable constructionist.
Charles Babington and Susan Schmidt of the Washington Post fearfully point out on the front page of the July 4th edition that “Democrats’ hopes of blocking a staunchly conservative Supreme Court nominee on ideological grounds could be seriously undermined by the six-week-old bipartisan deal on judicial nominees.” In fact, that was the stated purpose of the deal at the time, lest it be forgotten by the Post and others.
Others disagree however and see no cause for concern, and the mainstream media (MSM) seem ready to grant them a pass to once again frame the issue. Sen. Chuck Schumer (D-N.Y.) was quoted in the New York Sun as saying that “the bottom line is that the agreement said the extraordinary circumstances are at the discretion of each of the individual senators? and of course judicial philosophy could be within the realm of extraordinary circumstances.”
True to form, the Washington Post also published a Ted Kennedy editorial on July 4th in which he stated that the “president should reject the pressure of the extreme factions of his party that want litmus tests for his nominee. This process shouldn’t just be about whether the next justice would help roll back women’s rights by overturning Roe v. Wade, the law of the land.” Forget for a moment that that quick reference to Roe v. Wade sounds an awful lot like a litmus test.
More interesting however is that Kennedy argues that “the president should reject the pressure of the extreme factions of his party.” This is the same Kennedy, after-all, who met with key leftist advocacy groups in November 2001 and came away with this consensus on Miguel Estrada, President Bush’s pick for a D.C. circuit vacancy:
[The groups] identified Miguel Estrada as especially dangerous, because he has a minimal paper trail, he is Latino and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.
Another memorandum (April 17, 2002) from Kennedy’s office demonstrates just how seriously these groups, the conservative likes of which Bush should be rejecting, are taken in Democratic circles:
Elaine [Jones of the NAACP] would like the [Judiciary] Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action is decided… The thinking is that the current 6th Circuit will sustain [it].
This is a blatant example of advocacy groups trying to fix a decision on a pending case. Where is the condemnation that a senator has no business heeding such advice and the insistence that he should instead permit the process to run its course? Or, that perhaps he take legislation out of the courts hands altogether, as the constitution intends?
The nitty-gritty of the issue is that judicial appointments are not supposed to be about politics, yet even this seemingly innocuous presupposition has been met with debate. Sen. John Cornyn (R-Tex.) has said that he wouldn’t ask nominee’s where they stand on abortion, affirmative action or other contentious issues; meaning that he would not use his own politics as a litmus test to be surmounted if a potential judge is to even pass for consideration. Messrs. Schumer and Kennedy have assured us they would insist on just that.
In anticipation of the first Supreme Court nomination in more than a decade, what is needed is a healthy dose of perspective and accuracy. We should all be reminded of what it is the constitution compels the president and the congress to do, not what some would like to see the other do. We need to be reminded of the facts, and a spade should be called a spade every time politics and hypocrisy are inserted into a debate as salient as a Supreme Court appointment.