Supreme Court Politics - November 2005

Elections matter.

When a political party is able to gain voter support to elect a President and the majority of the members of the United States Senate, that President should be able to confidently nominate judges to the federal judiciary including the Supreme Court.

That happened in 1993 when President Bill Clinton nominated Ruth Bader Ginsberg to the Supreme Court when his Democratic Party also held a slim majority of the seats in the United States Senate.

The minority Republican Party did not actively fight her appointment, or threaten filibusters, despite her public record of advocating that prostitution was constitutionally protected and that the age of consent should be lowered to 12. She also had criticized the Boy and Girl Scouts for perpetuating gender stereotypes.

There was even little controversy in the fact that she had been the General Council of the ultraliberal American Civil Liberties Union. Amazingly, nearly all of the Republican Senators joined in the 97-3 vote to confirm her to be an Associate Justice of the Supreme Court.

So what has changed? Why is President Bush having such a hard time with his nominees?

Millions of voters around the country worked tirelessly to get out the vote in 2000 and 2004 to elect George W. Bush to the Presidency. In 2004, those voters also gave the President a comfortable majority in the United States Senate which should have ensured him an easy time putting conservative judges on the federal courts.

So why do the minority Democratic Senators believe it is OK for them to pull out all of the stops to deny President Bush, and his voters, many of his choices for federal judges?
More thought provoking is why does President Bush feel he has to nominate individuals to the Supreme Court with limited paper trails for his opponents to use against them?

To me, the situation is simple. President Bush should not be shy or hesitant to nominate judges who will apply the laws as written by our founding fathers and by our Congressional and state lawmakers. He should proudly select a proven jurist who has a proven reputation for applying the law and not changing it to meet his or her personal or religious views.

The new Chief Justice of the Supreme Court, John Roberts, said it best when he stated that if the Constitution is on the side of the little guy, then he will be on the side of the little guy and if the Constitution is on the side of the big corporations, then he will be on the side of the big corporations. He said the law would determine his rulings – not his opinions.

President Bush’s recent nomination of Harriet E. Miers to replace Associate Supreme Court Justice Sandra Day O’Connor is a big question mark. Does she have the background or intellectual skills to vote on the important constitutional issues debated by the Supreme Court? She has no judicial track record and no appellate or constitutional experience of which I am aware to base her analysis and votes.

Perhaps her biggest selling point for a lifetime seat on the Supreme Court is that most of the Democrat Senators seem to like her and plan to have an open mind when it comes to voting for her. What do they know about her past legal efforts and battles that the President does not know? I doubt Bush’s tens of millions of voters worked hard so he would select a nominee who the Democrats like and defend.

With so many judges who Bush himself has appointed to the federal courts, why didn’t he choose one of them to move up to the Supreme Court? They have paper trails and we can probably predict their future analysis on their past rulings.

Harriet Miers, if she is confirmed by the Senate, may turn out to be a superb Associate Justice of the Supreme Court. For the sake and benefit of our country, we should all hope that she exceeds our limited expectations of her.

Perhaps President Bush has nominated the perfect stealth candidate to the Supreme Court. Perhaps his twenty years of friendship with, and counsel from, Ms. Miers has given him insight into knowing that she will strictly apply the Constitution and federal laws. Or perhaps not. Only time will tell.