Posted on 07/02/2005 8:04:07 PM PDT by CHARLITE
ON OCTOBER 23, 1987--a day that lives in conservative infamy--Robert Bork's nomination to the Supreme Court was rejected by a Democratic Senate. Now, 18 years later, George W. Bush has the chance to reverse this defeat, and to begin to fulfill what has always been one of the core themes of modern American conservatism: the relinking of constitutional law and constitutional jurisprudence to the Constitution.
The restoration of constitutional government has been the one area in which modern conservatism has had the least success. From Ronald Reagan to George W. Bush, conservative economic policies have been (more or less) pursued, and, when pursued, have been vindicated. From Ronald Reagan to George W. Bush, conservative foreign policies based on American strength and American principles have been--when pursued--remarkably successful. One might even say that, in both economics and foreign policy, the degree of conservative success has been far greater than anyone would have imagined in 1980.
But in the area of constitutionalism, conservative goals have been thwarted, and the key moment of failure, from which conservative constitutionalism has never recovered, was the Bork defeat in 1987. For the last 18 years constitutional jurisprudence has continued to drift away from a sound constitutionalism based on the written Constitution and a proper deference to popular self-government in many areas of public life. Bork's defeat was both a cause and a symbol of this continued downward drift. Now, with one of the two swing votes on the Supreme Court stepping down, George W. Bush has a chance to begin to make constitutional history, as he is certainly attempting to do in foreign policy and, to a lesser degree, in economic policy.
There are two pieces of good news to keep in mind as President Bush ponders his choice. The first is that, by contrast with the situation in 1987, the Senate has a Republican majority. The second is that President Bush can choose from among many, many well-qualified conservative constitutionalists. Although President Bush is understandably fond of and loyal to his attorney general Alberto Gonzales, it's simply a fact that Gonzales does not have the stature of several other possible candidates. I now believe that, though tempted, President Bush will leave his attorney general in his current office.
The president has the luxury of choosing among such candidates as Michael McConnell, probably the leading constitutional thinker of his generation, now serving on the 10th Circuit; J. Michael Luttig, who has served with great distinction for 14 years on the 4th Circuit; the remarkable Janice Rogers Brown, with almost a decade on the California Supreme Court and a recent confirmation to the D.C. Circuit Court of Appeals; as well as other federal and state supreme court judges--some of whom happen to be women (if that matters), and all of whom have strong credentials.
Most of the Democrats will fight any strong candidate. It won't matter if that candidate doesn't have a paper trail, because any nominee will have to make his or her general manner of constitutional thinking clear to the Senate--which thinking will almost inevitably provoke opposition from the left. But such opposition, however vociferous the rhetoric, will not be unstoppable. Indeed, looking at the current Senate, I do not believe that there are 40 Democratic votes to sustain a filibuster against an objectively well -qualified conservative nominee. And in any case a filibuster would be very difficult for the Democrats to defend.
George W. Bush's has been a Reaganite presidency in the areas of foreign and economic policy. He has impressively adjusted Reaganite principles to deal with today's challenges. Now he has the chance to once again follow Reagan's lead by nominating a jurist as impressive as Robert Bork for the Supreme Court. And now he has the chance to surpass Reagan--by getting that nominee confirmed.
If Bush nominated a person with credentials and judicial record identical to that of O'Connor's at the time of her nomination, that nomination would be filibustered.
Nothing in the Constitution limits the number of Supreme Court justices to nine. It started out at six. The President can appoint a tenth if he so desires. FDR did.
Why not just re-nominate Bork?
"believe Luttig is far more conservative than McConnell."
I'm not calling McConnell a liberal, which is obviously isn't. But I would trust him less than Luttig and some other people. The fact that he opposed the Clinton impeachment is a problem -- given that we're fighting what amounts to a civil war in this country, he should not have aided the enemy. If he honestly believed the impeachment violated the spirit of the Constitution, he should have kept his mouth shut.
Another problem with McConnell: Some of the liberal law profs endorsed him for the appellate appointment. Do they know something we don't? And what are we to make of the fact that he clerked with William Brennan, an outrageously liberal "justice"?
Very good point, "Okie." You're absolutely right.
Let me add this: The Rats' strategy will be to sweet-talk Bush into appointing a moderate like Gonzales. If he does, that squish will be confirmed, thereby avoiding any risk of the nuclear option. The Rats want to avoid a vote on the nuclear option at all costs, so they can preserve their ability to veto a Rehnquist replacement and other possible replacements should there be other vacancies.
Conservatives, call the White House NOW and TRASH GONZALES. Bush wants him on the Court sooner or later. Deliver the message: THIS IS NOT WHAT WE VOTED FOR, W.
It is far more effective to appear informed, firm, and positive.
An incredible statement. The next time you see something that you believe violates the Constitution, I trust that you will do the same.
And what makes you think I am uninformed and not firm?
I was expressing passionate opposition to Gonzales, which is the most important message for W. to hear right now. He loves this guy, God knows why. Cronyism in Supreme Court appointments is a disgrace, especially when it would lead to another O'Connor.
Who do I like: Michael Luttig, Edith Jones, Emilio Garza are the ones I really trust. Luttig above all, probably.
Several others may be equally good, but I've given you three.
I said the SPIRIT of the Constitution.
The impeachment clearly and obviously did not violate the LETTER of the Constitution. If something violates the LETTER of the Constitution, I'd say there is NORMALLY an obligation to speak out. I wouldn't say that's always the case, especially when it would tend to be interpreted in favor of a dirtbag like Clinton and his White House mafia.
You seem to think Gonzales is OK?
In God's name, why?
Don't let their definition of "moderate" stick though. What they call "extremists" are really just strict constructionists very much moderate considered in the context of broader American judicial history. Use of that term by liberals is a ploy, in the spirit of Goebles, to shape public opinion: if you repeat a lie often enough, people will believe it.
No. I never implied that. I don't trust him at all.
Bork the senate, sounds good to me!
Then we could have Bork-barrel spending!!!
The Democrats will viciously fight any nominee Bush gives them....
Let's nominate Koko the Gorilla and see what happens.
What they call "extremists" are really just strict constructionists very much moderate considered in the context of broader American judicial history. Use of that term by liberals is a ploy.
Everybody uses political labels today. It's the thing to do.
BTTT
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