November 5, 2005
Maybe a Good Fight Is Just What America Needs

By David M. Shribman

The Wall Street Journal's lead headline Tuesday morning said that the president's selection of Judge Samuel A. Alito Jr. for the Supreme Court "Sets Stage for Ideological Battle." That very same day, The Washington Post, which looks at life from an entirely different angle, offered a lead headline of its own, saying that the choice of the New Jersey jurist "Sets Stage for Ideological Battle."

Put aside for a moment the question of whether the editors at the Journal or the Post might have sneaked a peak at the other guy's answer sheet -- or the more diabolical question of whether the mainstream press, whether it be anchored on the right or on the left, is ordering off the same menu. Those are questions for another morning.

This morning we ought to pause to wonder whether the ideological battles the Journal and Post say are coming are good for America.

There are times when many people think they're not. In the middle of a conventional and a particularly divisive war, perhaps. When the nation is facing the imminent danger of a terrorist attack, almost certainly. When the nation is recovering from the unimaginable grief of a signature disaster like 9/11 or Hurricane Katrina, probably.

But with the consensus choice for new chief justice comfortably on the bench -- so comfortable that it is almost tempting to think that John G. Roberts Jr. has been studying for the role for a lifetime -- and with the floodwaters (but not the recriminations) receding from the Gulf Coast, it might be time for the sort of fight that makes politicians sort out what they think and where they stand.

The nomination of Harriet Miers to the high court was designed to avoid just such an eventuality. The White House -- or, more precisely, the chief tenant of the White House, for there is no evidence that there was even a second person in Washington who thought Ms. Miers was an astute choice for the bench -- calculated that she was so blank a screen that politicians of both sides would project their own prejudices onto her. Instead, they projected their own insecurities, and the blank spaces were swiftly filled with doubts, doubts that doomed her nomination far earlier than the president and his nominee realized.

There is no danger in November that the passacaglia of October will be repeated: a stately set of dreary meetings with senators who could barely conceal their contempt followed by bouquets of contrived compliments and professions of an open mind. Judge Alito has judicial accomplishments, a record and a clear ideology. No one has to testify that, down deep, he's not shallow.

That's at once the source of glee and despair among lawmakers, partisans and interest groups. No tabula rasa here. The fellow has views on abortion, and views on personal privacy, and before he's done he's going to have to explain how he squares his view on abortion in Planned Parenthood of Southeastern Pennsylvania v. Carey with his views on privacy growing out of Griswold v. Connecticut. And before the conspiracy theorists in the blog world conclude that the press, being ardent supporters of abortion rights, are going to hate this guy, consider that he may well emerge as a fierce ally of free expression, which is supposed to be the issue we typists care about most.

The other day the chorus on the right was singing the same song: It's about time the Bush White House picked a fight with its enemies instead of with its friends. Presidents often do the opposite, as conservatives accused Mr. Bush (he of the big spending in Louisiana and the wimpy nomination of Ms. Miers) of doing all autumn.

But the president didn't do that this time. He nominated pretty much the kind of conservative he promised conservatives he would nominate.

Now we encounter the question of the moment, whether an all-out fight over Judge Alito is something to welcome. There's a pocket of people who think it isn't, that the country is contentious enough and that the last thing we need right now (you will hear that exact phrase many times before the Alito nomination reaches the Senate chamber) is a big fight about abortion and original intent and super-precedents and civil liberties.

But maybe that is exactly what we need, and by we I mean all of us.

We are in year five of a presidency. There is no heir apparent (and if there were, the armor of the apparent heir apparent, Dick Cheney, is chinked right now). Neither the Republicans nor the Democrats have the slightest idea whom they want to nominate in primaries that will be getting under way in about two years, which is closer than it sounds. That is because neither the Republicans nor the Democrats have the slightest idea what profile they want to present to the American people as sunset approaches on the Bush Years, Part II.

The country is weary, you say. It has been wearier. The country is impatient with politics, you argue. It has been more impatient. The country's a mess right now. It's been a mess before, and we've gotten through it.

But a good clean fight about things that matter might be just what we all need. It is certainly what the Republicans, who can't figure out what conservatism means, need. And it is certainly what the Democrats, who can't figure out whether they are liberals anymore, need. A good fight might clarify the mind.

But before we hand the gloves to the pugilists, here's a viewer's guide: Ignore the special-interest pleaders and moaners; their pleas and moans were scripted long before Mr. Bush made his choice, and they are as predictable as the spring. Watch the Republican moderates, especially Olympia J. Snowe of Maine and especially not Lincoln Chafee of Rhode Island. She's of sound judgment, he's not, and she's a good barometer of common sense. But most of all, forget the inside-the-chamber handicapping; Harry A. Blackmun was supposed to be Warren E. Burger. He turned out to be Harry A. Blackmun.

Supreme Court justices have a way of doing that.

Copyright 2005 The Pittsburgh Post-Gazette

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