Sekulow for the Supreme Court

Like many conservatives, I was stunned by President Bush's nomination of Harriet Miers to the Supreme Court. The only plausible point in Bush's favor is that he believes Miers to be a reliable conservative who can be confirmed with a minimal expense of political capital, giving him time to flog languishing legislation on social security and a host of other issues early in his term. But he may have underestimated conservatives' deep desire for a political battle royal over judicial nominations and constitutional interpretation.

Frankly, I'm tired of supposedly conservative office-holders who shy from defending the eminently defensible view that constitutional interpretation should be based on what the Constitution actually says. The central function of the Constitution is to serve as a buffer against vicissitudinous political opinion—a function that directly conflicts with the constitutional origami of leftist judges.

That's not a difficult point to make. But rather than proudly defending that point when, for example, a nominee like John Roberts comes under fire for his Federalist Society membership, Republican leaders instead downplayed his involvement.

Here's some perspective on just how cowed are conservatism's Republican representatives: Consider that those who oppose abortion in all circumstances (21% according to this 2005 Harris poll) outnumber U.S residents who are black (13%), hispanic (14%), or liberal (18%). They are statistically tied, with the 23% who would allow abortion in all circumstances. Consider that abortion is consistently one of the single most important issues among Republican voters. And consider that majorities of both conservative and liberal constitutional scholars believe that Roe v. Wade was a horribly reasoned case.

And yet, while Democratic senators candidly make support for Roe the sine qua non of judicial mainstreamism, Bork-wary Republicans scrape and scrounge for nominees who are closet-conservatives at best. Despite controlling Congress and the Presidency for several years Republicans have failed to end partial-birth abortion—which is opposed by a huge majority of Americans. Nor have they seriously made the case for blaming their failure on Roe or linked it to Democratic obstruction of judicial confirmations.

So when will conservatism have won in America? When a Republican president unashamedly nominates Jay Sekulow, chief counsel for the ultra-conservative American Center for Law and Justice, to the Supreme Court. I'm not joking. And the fact that you think I'm joking shows how firmly the left still controls political debate in America.

Article Author: Ashley Tate

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