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Shifting and shifty standards for court appointments

By Michael M. Bates
web posted July 11, 2005

The word of the week is consultation. As in, it's essential for President Bush to engage in consultation with Democrats before nominating anyone to the Supreme Court. And it has to be genuine, according to New York's Senator Charles Schumer, who demands "real, face-to-face, back-and-forth consultation."

Let's see. Democrats have managed to lose their control of the House of Representatives. They lost control of the Senate. They lost control of the White House.

This places them in a somewhat less than ideal position to be issuing demands. It's rather like Robert E. Lee insisting on "real, face-to-face, back-and-forth consultation" with General Grant in setting the terms at Appomattox.

Replacing Sandra Day O'Connor will be a long, ugly, drawn-out mess. The President's nominee will be subjected to withering scrutiny. No aspect of his or her life will go unexamined. A Democrat senator nailed one of Mr. Bush's earlier judicial nominees for changing his vacation plans. The man and his family, including two young daughters, were going to Disney World. He rescheduled the trip when he found out it coincided with "Gay Day" there.

Charles Schumer

To many folks, this would seem to be a prudent decision. But in the eyes of Democrats, this was an act of unmitigated insensitivity and evidence of homophobia. His nomination was held up in the Senate for two years. Senator Schumer is on the Judiciary Committee that will hold hearings on the Supreme Court candidate. He's salivating over the prospect:

"All questions are legitimate. What is your view on Roe v. Wade? What is your view on gay marriage? They are going to try to get away with the idea that we're not going to know their views. But that's not going to work this time."

It has before. When the shoe was on the other foot.

A dozen years ago Clinton nominated Ruth Bader Ginsberg to fill a Supreme Court vacancy. Ms. Ginsberg had launched the Women's Rights Project at the American Civil Liberties Union.

So committed to civil liberties was she that Ms. Ginsberg suggested laws against bigamy were unconstitutional. And the age of consent in statutory rape cases should be lowered from 16 to 12. And Mothers Day and Fathers Day should be tossed for the much trendier Parents Day.

With a record like that, Clinton's nominee should have been bombarded with questions. Her extremist views, placed in public, should have ended any hope of appointment to the Supreme Court.

It didn't happen. Maybe that was because Republican senators, unlike today's Democrat senators, believed a president has the right to name anyone he wants to the federal bench. Unless there's overwhelming evidence against it, that person should be approved.

Or maybe it was because Republican senators lacked the guts to go to the mat over an ACLU radical's nomination. Certainly they weren't demanding "real, face-to-face, back-and-forth consultation."

So Ruthie went into her hearings and was confident enough to set the guidelines by which she'd be questioned. She had, she said, "my rule about no hints, no forecasts, no previews" about how she might rule in any future decision.

She rope-a-doped the Judiciary Committee like a champ: "I can't express my personal view on that subject." "I cannot say one word on that subject. . ." "I prefer not to address a question like that." "Senator, I would prefer to await a particular case."

Contrary to what Schumer says, all questions do not need to be answered. Ay least not when it's a Democrat president doing the nominating.

Justice Ginsberg was confirmed by the Senate with just three dissenting votes. It took only two weeks from her first Judiciary Committee hearing to her confirmation. Compare that to what happened to Priscilla Owen. She was nominated by President Bush to a seat on the 5th U.S. Circuit Court of Appeal in 2001. It took more than four years for the Senate to approve her.

Mr. Bush wasn't elected so that Democrats could dictate Supreme Court nominations. He owes them nothing and that's precisely what he should give them.

This appeared in the July 7, 2005 Oak Lawn (IL) Reporter. Mike Bates is the author of Right Angles and Other Obstinate Truths.


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