The retirement of Justice Sandra Day O'Connor from the Supreme Court has presented President Bush with a situation so contentious as to make John Bolton seem as non-controversial as Ned Flanders -- mustache, glasses and all.
Why? The democratic minority in the Senate, puzzlingly led by the irredeemably self-righteous Ted Kennedy, has already intimated that it fully intends to browbeat any nominee right of center, filibustering its way into a stalemate and non-confirmation. Unsurprisingly, democratic leadership and commentators have lauded this gross extortion as upholding the senatorial duty to advise and consent, apparently ignorant of the definition of consent.
This reminds me of a quote by none other than Thomas Jefferson, a man erroneously considered the father of the Democratic Party.
"On their part, they have retired into the judiciary as a stronghold. There the remains of Federalism are to be preserved and fed and from that battery all the works of Republicanism are to be beaten down and erased," Jefferson wrote.
Today's crossroads is remarkably similar. A party on the decline, having lost its majority status and broader national appeal, now retreats furiously to the judiciary, where it can impede the will of the majority for a generation.
But this clear attempt at elitist minority rule is all the more galling, considering Justice O'Connor's history and the two Clinton justices, Ruth Bader Ginsburg and Stephen Breyer. O'Connor was appointed as a slight conservative by the most conservative president of modern times, who had been in office less than a year and faced a slight Republican majority in the Senate. The result: a 99 to 0 vote for confirmation.
Commentators have been wont to uphold O'Connor as one of the Court moderates -- one of the swing votes -- along with Anthony Kennedy, but this is misleading. She decided in favor of Bush in Bush vs. Gore. She sided with Texas in Texas vs. Johnson, agreeing that flag burning is not a form of expression protected by the First Amendment. She also joined the majority against President Clinton in Clinton vs. Jones. I could go on, but brevity is the soul of opining.
In a May 2003 interview, O'Connor herself took issue with statements suggesting that she was a political centrist. When presented with an article discussing her role as "the" swing vote -- which, the author claimed, made O'Connor more important than her other eight colleagues -- she dismissed the notion out of hand. O'Connor responded bluntly, "I don't see my role as deciding things, or even purporting to decide things, in the fashion of that article."
The most maddening aspect of the impending Democratic temper tantrum is a close inspection of the nominations and confirmations of the two Clinton justices. Close votes? A combined 184 yeas to 12 nays, with four abstentions, does not a close vote make. Although a reasonable case can be made that Breyer was widely perceived as a moderate at the time of his nomination in 1994, despite his role in the Watergate Special Prosecution Force in 1973, the same cannot be said with a straight face about Bader Ginsburg.
Ginsburg was the General Counsel of the ACLU from 1973 to 1980 and a member of its board of directors for six of those years. She also was instrumental in the creation of the Women's Rights Project of the ACLU in 1971. I find it very difficult to envision a moderate involved so extensively with a widely-recognized liberal activist organization. Apparently, the Republican minority in the Senate in 1994 disagrees with me, though. Ginsburg breezed through the confirmation process with a 97 to 3 vote.
Should Bush's nominee's rsum include membership in a conservative legal organization such as the Federalist Society, the Democratic senators of the Judiciary Committee will see this as a definite sign that the Court is about to get a doctrinaire reactionary, evoking memories of William Rehnquist's narrow confirmation as Chief Justice in 1986. Otherwise, the process will degenerate into personal mudslinging and unverifiable baseness, as was the case in Clarence Thomas's narrower confirmation, or worse, as Robert Bork painfully learned.
If voters consistently elect Republican presidents and senators, they can logically expect conservative judges to take the bench. President Bush said as much during his re-election campaign last year.
In all probability, though, the confirmation debate looming ahead will not be what the American people should reasonably expect based on last November's results. Instead, it will degenerate into a mad effort by a wayward party to force its waning relevance upon the majority of the American electorate.
