TCS Daily

The Circus That Won't Leave Town

By Ilya Shapiro - July 15, 2005 12:00 AM

WASHINGTON -- In England, the lazy, hazy, less-rainy days of summer bring with them what is known as the "silly season," when everyone goes on holiday and journalists have nothing better to do than invent political intrigues and speculate about all sorts of always-crucial decisions that await at the end of the sojourners' travels. The pols and the journos, they're made for each other: meeting secretly to outwit their enemies, trying to catch each other off guard with scoops and bombshells, and generally being a nuisance to the public -- which wisely tunes out all this, well, silliness.

Here in America, of course, nobody but politicians (and teachers) gets any summer vacation worthy of that appellation. Instead, we move been stifling heat and teeth-chattering AC and live weekend-to-weekend, when we can escape to the lake or the ocean or the mountains. To add insult to humidity, those of us in one of the nation's news centers and afflicted with the need to "keep up with current events" can't help but be inundated by endless reams of newsprint and hours of TV footage dedicated to nothing but our media's breathless analysis of the latest histoire-du-jour.

If only something -- anything -- would break the tedium, so talking heads would stop speculating about a presidential election more than three years away, so columnists would stop trying to read the leaves of some congressman's iced tea, so radio announcers... no, talk radio's pretty much always the same, bless its heart. [Full disclosure: I made my broadcast media debut a few weeks ago on the KSFO Morning Show.

Well, we got what we've been asking for: a controversial end to filibusters and several inane Supreme Court decisions segued into the current debate over Supreme Court vacancies (currently just the one, but do hold your breath). Legal correspondents have been in firedrill mode for almost two months -- including a Fourth of July weekend ruined by Justice O'Connor's long-expected (because she never hired a fourth clerk!) retirement. So now we have our very own long, hot summer.

And the frenzy is unbelievable. Interest groups mobilized on all sides: pro-choice, pro-life, protestors and profilers. As if this were an election campaign. As if the mind of a vainglorious senator -- let alone the most single-minded president in recent history -- could be changed by a little "hey hey, ho ho, no more conservative than Sandy O."

Nan Aron, of the rabidly left-wing Alliance for Justice has been giving interviews suggesting that the President must nominate a "consensus" candidate to the Supreme Court, someone who can "unite the country." As if George W. Bush hadn't twice run on a platform of nominating judges who would faithfully interpret the Constitution without trying to discern "evolving standards of decency" or the "mystery of human life", or foreign law, or whatever their sense of "justice" (rather than their legal training) tell them to do. More importantly, as if any federal judge, unlike the folks who nominate and confirm him, should be anything but a sayer of law -- rather than a mouthpiece of the people.

Ralph Neas, of People for the American Way, has assembled an honest-to-goodness war room, to man the phones and activate the grassroots -- as if assembling a bunch of fellow travelers at coffee klatches around the country constitutes just that "extraordinary circumstance" that allows a filibuster under the deal brokered by the Gang of 14 (which is more like a Gang of 12 now that Lindsay Graham (R-SC) and Mike DeWine (R-OH) have heard it from their constituents).

Meanwhile, Ed Gillespie, former chairman of the Republican National Committee, and Fred Thompson, the accomplished actor and former senator, have been charged with marshaling the forces of the other side of this zero-sum equation. There was even a recent strategy call among Senate GOPers, with Bill Frist (R-TN) leading discussions from Tanzania, where he is on his annual medical mission to Africa.

While the President called for a "dignified" confirmation process, too much is at stake for civility to prevail. There have been no vacancies on the high court in 11 years and the chattering classes have become more polarized than even during the Bork or Thomas hearings; gone are the days when a President Clinton (elected with 43% of the vote) could appoint the former general counsel of the ACLU and have her confirmed 96-3 after she declined to answer most senators' questions. In such trying times, President Bush should think about the long-term, and pick the candidate who will most advance his legal ball -- without consideration for personal ties (Alberto Gonzales, yes, but also Justice Souter, who was from Bush père chief of staff John Sununu's home state of New Hampshire) or gamesmanship.

I hope that the President does just that, selecting a jurist who will be faithful to the Constitution and consistent in his or her jurisprudence. In any event, let's all hope that our own silly season is preempted by more auspicious circumstances than those which have forced English journalists and politicians to attend to more serious matters.

Ilya Shapiro a Washington lawyer, writes the "Dispatches from Purple America" column for TCS. His last piece parodied the Supreme Court's evisceration of property rights.


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