The editorial board of the Washington Post lays down the gauntlet in the fight over the person who will replace Supreme Court Justice Sandra Day O’Connor.
But in making his second nomination, Mr. Bush faces an additional complication: diversity. The president has never made a secret of his desire to put the first Hispanic on the high court, while another male nominee would leave only one woman among the nine justices. The White House’s concerns are legitimate: The court is not a representative institution, but it shouldn’t be parade of white men either. Finding a nominee who adds diversity to the court while at the same time satisfying Mr. Bush’s base and maximizing support from across the political spectrum is tricky.
Why is diversity important ? Isn’t it more important that the person appointed be a good, intelligent judge ? Since when is skin color, ethnicity, or gender, a legitmite criteria for determining if someone is qualified for a particular position ?
The Post then goes on to discuss the criteria Bush should use to make his selection.
The first criterion on which he must insist is the highest caliber of professional qualification. Particularly following the Roberts nomination, it would be a glaring mistake to choose the second nominee for narrowly ideological reasons or personal political loyalty.
Of course, what this means is that if Bush picks someone who has an ideological bent that the Post, or the left in general, disapproves of, they will first attack that persons professional qualifications. It happened with Bork. It happened with Thomas. It will happen again.
A second important factor is temperament. One reason Judge Roberts seems so different from conservative justices such as Antonin Scalia is that he does not project a desire to use the bench to wage a war for the future of American society. Rather, he portrays the court as a place to resolve disputes between parties that cannot do so on their own.
Excuse me, but when did Antonin Scalia declare war on anyone or state anything that could be interpreted as a desire to use the bench as a launching point in the culture wars ?
Scalia is not a bomb-thrower and never has been. He is perhaps one of the most intelligent Justices to ever have sit on the Supreme Court, and in one sentence the Post reduces him to nothing but a bomb-thrower.
Similarly, nominees who display a commitment to precedent are far less threatening to those who disagree with them than ones who appear eager to overturn decisions with which they disagree. Justice Clarence Thomas is the court’s most radical justice precisely because of his blithe willingness to revisit holdings that are decades old.
Respect for precedent is a good thing in a judge, but a blind obedience to precedent is not. Dred Scott was precedent, but it was bad precedent. So was Plessy v. Ferguson. Alot has gone wrong in American Constitutional jurisprudence in the past 75 years or so and a Justice willing to recognize that is a good thing.
Fidelity to the Constitution as written can be an honorable position or another guise for mandating one’s own preferences from the bench. A nominee with a history of bending an articulated judicial philosophy for claims he or she finds politically congenial will raise suspicions; a nominee who has been a straight shooter on the law should be easier for a wide swath of American society to accept.
Does that include a liberal Judge who bends the law and precedent to find support for a right to abortion, or homosexual marriage ? I didn’t think so.
The Post goes on to say that there is “no lack of strongly qualified nominees” that the President could choose from but then end, ominously I think, with this:
Judging from some of the candidates reportedly being considered, however, the White House appears tempted to sacrifice both quality and breadth of potential support in order to push the court to the right. That would be an unfortunate move.
Yes. How unfortunate that the President would name a nominee of his own choosing rather than one approved by the Washington Post.
Linked with today’s Beltway Traffic Jam and Mudville Gazette’s Open Post
