Constitution, not consensus
Townhall.com Editors
July 8, 2005
The President has a choice to make this month—one that will affect our nation for years to come.
It is one of those rare, historic moments when a President gets to literally honor his pledge to “preserve, protect, and defend the Constitution of the United States,” by nominating a judge for the Supreme Court.
Bush’s opportunity is rarer than most because he can change the composition of the highest court in the land by nominating a strong constitutionalist to fill the slot of the swing-voting Sandra Day O’Connor.
With Democrats likely to savage any nominee Bush puts forth and possibly invoke the filibuster, shifting the balance of the Court will take political courage and capital. But, President Bush has proven time and again to have the former, and the 2004 election cycle gave him plenty of the latter. Now is not the time for him to falter.
Liberal advocacy groups have already started claiming all they want to see is a nominee in the tradition of O’Connor or Stevens or Kennedy. They want a nominee they claim will bring the Senate and the country together. But Bush has been promising a Scalia or Thomas for two election cycles, and it was partly on the strength of that promise that he was swept back into office with an increase in his majority in both the House and Senate.
Bush must think of the Constitution, not consensus. Working for consensus would give the Court another John Paul Stevens or David Souter. Stevens and Souter, nominated by Gerald Ford and the elder George Bush, respectively, vote reliably with the liberal segment of the Court. O’Connor, appointed by Ronald Reagan, swung back and forth depending on the issue at hand. All came to the Court with conservative credentials and recommendations, but wobbly judicial philosophy manifested itself in judicial waffling.
Hence, a Court filled with seven justices appointed by Republicans decided 5-4 in its last session to willfully ignore the 5th Amendment to the Constitution, which expressly restricts the government’s use of eminent domain takings to “public use.” Kelo v. New London is just the latest chapter in the Court’s long tradition of judicial activism, which takes away the power of law-making from the elected representatives of the people and can threaten the most basic rights we thought we enjoyed under the Constitution.
When liberals say they just want a justice like Stevens or Souter or O’Connor, what they mean is they don’t want this Republican president to learn from the mistakes of those who came before him.
A nominee with a rock-solid, documented judicial philosophy rooted in the Constitution’s original meaning is the only thing that can prevent such a mistake from happening again. The fight will be hard, but the stakes are too high not to fight it.
The President has a choice to make. A Court filled with consensus picks has rewritten the establishment clause, the interstate commerce clause, and now the 5th Amendment. There’s only so much of this kind of “healing” the Constitution can take. The President cannot heal the country at the expense of the Constitution, no matter how much liberals wish he would try.
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