I don't remember
such an event. I remember shrugging, anticipating associate justices
who would skew the way a Democrat president would like and anticipating
a chance to achieve some balance in a future Republican presidency.
Meanwhile,
Justices Ginsburg and Breyer have been reliable torchbearers for
the army of Americans – mostly liberals – who regard
the Constitution as perpetually subject to the evolving sensibilities
of the day.
Now, with
a Republican president, comes the expectation that his selections
will represent the opposing view, usually held by conservatives,
that the Constitution is to be carefully regarded for clues as
to its authors' intent.
But the decorum
that gave presidents deference in such choices has vanished. Or
at least it has for Republican presidents.
Justice Ginsburg
was confirmed by a Senate vote of 96 to 3, Justice Breyer by 87
to 9. In other words, the vast majority of Republicans observed
a president's right to his nominations, absent enormous questions
of qualifications or personal misdeed.
Using that
same standard, new Chief Justice John Roberts should have been
able to expect a similar slam-dunk as the first appointee of President
George W. Bush.
Welcome to
the new era, where half of Senate Democrats opposed him for nothing
more than the stigma of appointment at the hands of a president
they loathe.
There was
no question as to Judge Roberts' qualifications or personal qualities.
The 22 "no" votes were cast purely because the naysaying
senators disagreed with the thoughts in his head.
Surely those
22 can't show their faces in their home states if they vote yes
on the latest nominee, Judge Samuel Alito. He arrives with a track
record of constitutional constructionism that strikes terror into
the hearts of Democrats who have long counted on the courts to
bring about what the party could not achieve legislatively, from
universal abortion rights to constraints on the death penalty.
This is exactly
the kind of pick Mr. Bush should have offered up the first time.
It is unfortunate that millions of his supporters who expected
better did not get it, and it is unfortunate that Harriet Miers
faces a stigma of failure when it is not her fault that she is
merely one of the 99 percent of lawyers who are not great picks
for the highest court in the land.
But that
is now nearly forgotten, and all is surely forgiven in the ranks
of the president's supporters, where smiles and optimism abound.
In dark contrast,
witness the whining objections of key Democrats who do not have
the guts to afford Mr. Bush the decency shown to Mr. Clinton and
his nominees.
Their knee-jerk
analysis that Judge Alito is a bone thrown to the right wing is
as baseless as it is hypocritical. Amid catcalls of "litmus
tests," Democrat senators will pillory Mr. Bush for seeking
to gun down Roe vs. Wade, when they all know that if they were
president they would never appoint a justice who did not guarantee
to uphold it.
But even
more craven will be the assaults on Judge Alito's character and
the misrepresentation of his record. He will be called radical
if not outright racist and misogynistic, and his temperament will
be attacked as archaic and insensitive.
Mr. Bush's
motivations will be similarly misstated, and an attempt will be
made to revise history. It is vital to thwart these shallow efforts,
so that we can recall what this chapter has really been about.
The complete
lack of a track record sank a nominee who was praiseworthy in
many ways, just not the ways relevant to a lifetime Supreme Court
appointment.
Bush supporters
demanded excellence, and the White House listened. Judge Alito's
love for original intent is no more shocking than Justices Ginsburg's
and Breyer's rejections of it.
I would hope
for hearings that reveal the kind of bipartisan courtesy shown
to Mr. Clinton's nominees. My expectation of that is precisely
zero.
