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.
Sekulow has argued nine cases before the Supreme Court bench. He’s been named one of National Law Journal’s "100 Most Influential Lawyers" and one of The American Lawyer’s top 45 public-sector lawyers. His post-academic credentials are nearly as impressive as those of Ruth Bader Ginsburg, the last Democratic nominee to the court, and the justice who is most nearly Sekulow’s polar opposite.
Ginsberg, confirmed with a 96-3 Senate vote, was a director of and general counsel for the ACLU before becoming a Federal judge. National Review‘s Edward Whelan summarized Ginsburg’s pre-confirmation opinions thusly:
Let’s assume, for example, that this nominee had expressed strong sympathy for the position that there is a constitutional right to prostitution as well as a constitutional right to polygamy.
Let’s say, further, that he had attacked the Boy Scouts and the Girl Scouts as organizations that perpetuate stereotyped sex roles and that he had proposed abolishing Mother’s Day and Father’s Day and replacing them with a single androgynous Parent’s Day.
And, to get really absurd, let’s add that he had called for an end to single-sex prisons on the theory that if male prisoners are going to return to a community in which men and women function as equal partners, prison is just the place for them to get prepared to deal with women.
Let’s further posit that this nominee had opined that a manifest imbalance in the racial composition of an employer’s work force justified court-ordered quotas even in the absence of any intentional discrimination on the part of the employer. But then, lo and behold, to make this nominee even more of a parody of an out-of-touch leftist, let’s say it was discovered that while operating his own office for over a decade in a city that was majority-black, this nominee had never had a single black person among his more than 50 hires.
The hypothetical nominee I have just described is, in every particular except his sex, Ruth Bader Ginsburg at the time she was nominated to the Supreme Court in 1993.
When a Republican president nominates a judge who is as open and unabashedly conservative (or even libertarian) as Ginsburg is liberal, with virtual certainty of his confirmation, we’ll know conservatism controls the battlefield of political debate. But for now our elected leaders are still afraid to join the fray.
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