TCS Daily


'Mainstream Conservative'

By Pejman Yousefzadeh - July 8, 2005 12:00 AM

It did not take long after the retirement announcement of Justice Sandra Day O'Connor for Senate Democrats to begin propagating their spin on her ideal replacement. As this New York Times article points out, the predominant Democratic spin has consisted of calling on President Bush to appoint a "mainstream conservative" -- in the words of Senator Edward Kennedy (who somewhat strangely said that it would be "an abuse of power" if the President nominated someone Senator Kennedy didn't like). Other Democrats helpfully chimed in, with Senate Minority Leader Harry Reid saying that Justice O'Connor was a voice of "reason and moderation" and that she should be replaced with "someone like her." And Senator Charles Schumer said that "We should replace Sandra Day O'Connor with a consensus candidate, not an ideologue." And if that isn't enough, Democratic National Committee Chairman Howard Dean said that "President Bush should follow the example established by President Reagan when he nominated Justice O'Connor. President Reagan had the courage to stand up to the right wing extremists in his party by choosing a moderate, thoughtful jurist."

Once we get past the nice rhetoric, what the Democrats really are saying -- of course -- is that "No Conservatives Need Apply" for the United States Supreme Court. Certainly not for Justice O'Connor's position, given that she has been -- at the most -- only a "mainstream" conservative and that she was over and above all a voice of "reason and moderation" who should be replaced by "someone like her," someone who is "a consensus candidate and not an ideologue." And definitely not a "right wing extremist." From all of this commentary, you would think that it is somehow verboten to replace a Supreme Court Justice of one particular ideology with a Justice of another ideology and you would think the rule against replacing a Supreme Court Justice of one particular ideology with a Justice of another ideology is a universal one.

But it isn't. It's only verboten in select circumstances. In other circumstances, the supposedly "universal" rule against upsetting the Court's ideology is discarded like yesterday's newspaper.

When Justice Byron White was appointed to the Supreme Court by President Kennedy, there were high hopes that he would be a jurist in the model of Kennedy's New Frontier. But over time, Justice White became one of the more reliably conservative members of the Court -- conservative enough that he dissented from the Court's decision in Roe v. Wade. Conservatives were delighted that this Democratic appointee became a fairly staunch ally on the Court while liberals were dismayed that President Kennedy had appointed someone who so often went against liberal interests.

Justice White retired from the Court in 1993 -- the first year of Bill Clinton's Presidency. Now, if the rule that a Supreme Court Justice of one particular ideology should not be replaced by a Justice of another ideology was to be followed, President Clinton would have been compelled to nominate a conservative of Justice White's stripes and caliber to succeed him. Instead, the President nominated Ruth Bader Ginsburg to replace White. Liberals could not have asked for a more pleasing candidate given Ginsburg's reliably ideological stance and her specific record as the former general counsel for the American Civil Liberties Union. Conservatives, meanwhile, should naturally have been downcast that a conservative vote on the Court was being lost for a liberal one.

But as Byron York makes clear, Justice Ginsburg's confirmation took less than two months to speed through the Senate. It helped, of course, that Democrats were in the majority, but as York points out, it also helped that Republicans threw no roadblocks in Ginsburg's way:

Republicans also chose not to oppose Ginsburg even though she refused to answer dozens of questions during her confirmation hearings. Among others, she declined to give her views on Roe v. Wade, on the Second Amendment, on the death penalty, on the Voting Rights Act, on race-based congressional redistricting, and on adoption rights for gay couples, among many other issues. At one point in her hearings, Republican Sen. Strom Thurmond told her, "In preparing these questions or any others I may propound during the hearings, if you feel they are inappropriate to answer, will you speak out and say so." On another occasion, Thurmond said, "I will not press you to answer any that you feel are inappropriate."

Imagine that kind of treatment being afforded a judicial nominee in this day and age -- a day and age in which we see filibusters invoked against multiple judicial nominees. Once you've managed that great feat of imagination, try imagining that such treatment will be afforded to President Bush's Supreme Court nominee -- no matter how well-qualified he or she may be. Kind of tough, isn't it?

Of course, Democrats will counter that the reason Justice Ginsburg got such an easy pass through the Senate was that President Clinton consulted with Senator Orrin Hatch, who at the time was the ranking Republican on the Senate Judiciary Committee and later became the chairman of the Committee. It was this consultation -- Democrats will claim -- that helped make it so easy to confirm Justice Ginsburg and Justice Stephen Breyer after her. And the logical consequence of this claim is that President Bush should consult with Senator Patrick Leahy, the ranking Democratic member of the Judiciary Committee, before picking his nominee for the High Court.

That's fine. If Senator Leahy is willing to put forth candidates as pleasing to conservatives as Justice Ginsburg was to liberals, a lot of conservatives would be more than happy to see President Bush make that deal. Indeed, many would urge him to make the deal-both to avoid what could be a very nasty confirmation fight and to get the benefit of having Democrats give political cover to the nominee.

Somehow, though, I am skeptical that Senator Leahy will be so accommodating. If he isn't, I hope that President Bush will consult with someone else about his nominee -- someone like law professor Todd Zywicki:

        ". . . the same nasty fight is going to occur regardless of who is nominated, 
        and be just as nasty and expensive, regardless of who is nominated 
        and the particular perception of whether he or she is moderate or conservative. 
        So, it seems to me, the Bush Administration would be smart to simply nominate 
        the best person that they want, and not be tricked into thinking that they can 
        somehow avoid a nasty confirmation battle by nominating someone with 
        a more 'moderate' perception. So if there is going to be a fight (which there 
        undoubtedly will be), they may as well at least make it someone worth 
        fighting for."

Now that's consultation I can get behind.

The author is a lawyer and TCS contributor. Find more of his writing here.

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