Monday, September 12, 2005

Be Careful What You Ask For

It has been said that perhaps the most important decision a President can make in domestic policy is the selection of a Supreme Court Justice. This is undoubtedly true, particularly in this time of judicial hegemony. With the passing of Chief Justice Rehnquist and his decision to nominate John Roberts as Chief, President Bush now has the opportunity to nominate another jurist to the highest court in the land. It seems clear that the "institutional Left"; People For The American Way, MoveOn, NARAL, and on and on and on, will oppose anyone selected by Bush. More troublesome for the White House is opposition from its political base.

The Washington Post has a story about the pressure being applied to Bush from the Right regarding the nomination of Attorney General Alberto Gonzalez, whom they fear is not conservative enough. They recall the nomination of David Souter by Bush's father and most decidedly do not want another unpleasant surprise. In the past Republicans have not had a stellar track record of choosing Supreme Court Justices who remain "conservative", and Souter is just the latest instance in a group that would include Earl Warren, Harry Blackmun and current Justice John Paul Stevens. It is not as if such fears are unfounded. On the other hand, the Chairman of the Judiciary Committee, Arlen Specter, is waiving of the White House on Gonzalez, claiming it is "too soon" to nominate him, whatever the hell that means.

And yet since the travesty of the Robert Bork hearings, subsequent Presidents have been effectively forced to choose a nominee with an obscure, or ideally non-existent, judicial provenance. Setting aside partisanship for a moment, as well as whether it had any basis in fact, Ted Kennedy's "Robert Bork's America" speech was powerful political theatre.

So what we have now are "stealth" nominees who, not without reason, are disinclined to engage in intellectually vigorous debate. This is a consequence of ideology overwhelming the advice and consent privileges granted the Senate by Article 2, Section 2, and this is true of the tactics by both parties. What we need is a fair hearing for all Federal court nominees that afford a potential judge or justice an opportunity to discuss their judicial philosophy without fear of being "Borked".

By "fair hearings" I mean the type of shameless self-aggrandizement that is apparently indispensable in becoming a Senator. What is the over and under on the number of questions asked to actually determine an answer a Senator wants to know? My guess is three to five. (And I hope that a couple of them relate to Kelo.) The rest will be something along these lines:

Sen. Leahy: Judge Roberts, it is good to have you here today. Now isn't it your plan, in the first week on the bench, to overturn Brown and Roe? Furthermore, have you stopped beating your wife?

Sen. Cornyn: Judge Roberts, I enjoyed our breakfast of apple pie and discussing our mothers, Now onto pressing matters, what are your thoughts on puppies?

There isn't a member of the Senate who doesn't know how they are going to vote. Everything else is just window dressing and that is too bad. But it is, after all, politics.


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