The Constitution Must Trump Senate Collegiality

July 5, 2005

I’m troubled by what I’m hearing from politicians — on both sides — concerning the type of person who should replace retiring Supreme Court Justice Sandra Day O’Connor and the process that should be followed to determine her replacement.

On “Fox News Sunday,” Republican Sen. Lindsey Graham said, “Well, replacing a Supreme Court justice is very important, but they come and go. Really what I think is at stake is the reputation of the Senate. Can we have a confirmation process that will hold the Senate up to the world and the nation as a deliberative body made up of men and women who are serious about their job, or will it break down into some food fight?”

Meanwhile, on NBC’s “Meet the Press,” Republican Sen. Arlen Specter registered his annoyance at so-called public interest groups lobbying the president and the Senate. Specter said, “I believe that when you have these wars with the groups organizing and spending a lot of money and perhaps, for them, more importantly, raising a lot of money, that it’s counterproductive and sometimes it’s insulting.”

Did you catch the common thread running through the senators’ statements? It seems to be all about them — the Senate, its reputation, its collegiality, its dignity. Likewise, the gang of 14 that banded together to block the Republicans’ invocation of the constitutional option to end filibusters on judicial nominees appeared to be more interested in the Senate’s image than in honoring the Constitution and their proper role in the confirmation process.

What narcissism! The composition of our appellate courts and the right of the president to appoint qualified judges is what is at stake here — not whether the reputation of the Senate as a pristine body of backslapping, congenial good old boys emerges from the process.

I frankly don’t care if the Senate engages in vigorous, even sometimes acrimonious debate, especially over something as important as Supreme Court nominees. Where did we get this wrongheaded idea that the senators’ manners are more important than the positions they advocate?

Getting along and demonstrating mutual respect is fine, but not at the expense of the substantive issues involved. And, given the fact that so many of our politicians have turned the judicial confirmation process into a partisan circus, what business do they have complaining about the public lobbying them?

Have these people become so arrogant they think they should conduct Senate business as an end in itself: to make the Senate look wonderful, dignified and collegial — and that “the people” should be denied even indirect access to their hallowed “deliberative” process?

If these pronouncements from Republicans weren’t discouraging enough, we’re hearing — predictably — far worse from Democrats. Notice the talking points emanating from Democrats and their liberal support groups designed to lay the groundwork to thwart the president’s constitutional prerogative of selecting O’Connor’s replacement.

They are saying the next justice must “embody the fundamental values of freedom, equality and fairness,” be “someone who is in the broad constitutional mainstream” and “a consensus candidate, not an ideologue,” and that in selecting the nominee, President Bush must employ the “Reagan Standard.” Also, since O’Connor is the one retiring, not the more “conservative” (read: originalist) Rehnquist, the replacement must be in the judicial mold of O’Connor.

Every one of these ideas is alarmingly misguided. When liberals talk about “freedom, equality, and fairness,” they’re talking about a justice who will impose policies consistent with their ideas of freedom, equality and fairness rather than interpret the Constitution. To them, “freedom” means anything but freedom, “equality” means equality of outcomes rather than opportunity, and “fairness” means things like subordinating private property rights of individual citizens to the economic interests of more powerful commercial groups.

When they talk about a “consensus candidate” they mean someone who meets their standards of liberal judicial activism, or at the very least can be relied on not to vote to overturn Roe v. Wade. That’s also what they mean by the “Reagan Standard”: someone like O’Connor, who will affirm Roe — as if the avid, pro-life Reagan knew O’Connor would disappoint in that area.

Cutting through the euphemistic rhetoric, Democrat senators want you to believe that judicial appointees must not be constitutional originalists, because they consider any justice who eschews liberal judicial activism — like Scalia and Thomas — to be a right-wing extremist. Sadly, all too many Republican senators are not much better.

President Bush should appoint whomever he wants and he mustn’t dilute his preference for the Scalia-Thomas model just because he is replacing the non-originalist O’Connor. The president was elected, among other things, on his promise to appoint constitutionalists to the bench. He has a right and duty to do so on every judicial appointment.