Supreme ponderings

By Aussiegirl

This morning's WSJ has some thoughts on a new Supreme Court nominee.

. . . Hours after Justice O'Connor's announcement, MoveOn.org was predicting a nominee who is "an extremist who will undermine the rights of individuals and families." Ted Kennedy was already ratcheting up his end-of-days rhetoric. Mr. Bush shouldn't let these threats deter him from choosing someone who will move the Court in the direction that voters have endorsed in two Presidential elections in a row.

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. On one hand, she found a "compelling governmental interest" in ensuring diversity, but she also expressed the hope that 25 years hence it would no longer be needed. Even here, however, she opposed the most blatant race-based schemes, which would put her to the right of Attorney General Alberto Gonzales, judging from what we know about his role in influencing the government brief in the Michigan cases.

She also moved left on abortion over the years, but her departure does not put Roe v. Wade in jeopardy, notwithstanding claims on the left. Justice O'Connor provided the fifth vote in Casey, reaffirming Roe and a woman's right to abortion, but Ruth Bader Ginsburg has since joined the Court as the sixth vote in favor of Roe. On the other hand, the Carhart partial-birth abortion case--a 5-4 decision overturning Nebraska's ban--could well be overturned. But then two-thirds of Americans support laws banning that procedure, and it is the Court's extremism that has blocked just about any regulation of abortion even up to the time of birth.

. . . 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. The only time the filibuster has been used against a Supreme Court nominee was LBJ's choice of Abe Fortas, who faced corruption charges, and even then it was used mainly to gauge Senate support.

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."

But the only way to stop "borking" as a political strategy is to defy and defeat it. Mr. Bush told voters in 2000 and 2004 that he would nominate Justices in the mold of Antonin Scalia and Clarence Thomas. He owes it to the country, and his most loyal supporters, to keep that promise.