The announcement yesterday that Justice Sandra Day O’Connor will retire from the Supreme Court will touch off a bruising political fight over her successor, who President Bush expects to nominate some time after he returns from the G-8 summit later this month. The stakes are great.
Over a generation the Supreme Court has delivered opinions on such volatile issues as racial preferences, sodomy, the death penalty and abortion that are grounded more in a desire to advance a political agenda than in interpreting the Constitution. The justices, including on occasion Justice O’Connor, have even cited the opinions of foreign courts as the basis for deciding.
Nevertheless, in the 24 years since President Reagan nominated her as the first woman to serve on the court, Justice O’Connor has conducted herself with grace and dignity. We have disagreed with certain of her decisions, particularly those dealing with racial preferences, limits on abortion and the death penalty. But she has frequently agreed with her more conservative colleagues on important cases, and she has been was one of the staunchest defenders of federalist principles.
Justice O’Connor evolved into a pivotal swing vote on the high court. She was “open to persuasion,” she once said, when others were not. Her departure offers Mr. Bush the opportunity to nominate as her replacement a jurist with a judicial philosophy similar to that of Antonin Scalia or Clarence Thomas. The president must seize this opportunity. By nominating such a person to the court, he will incur the wrath of the left led by Sens. Ted Kennedy, Christopher Dodd and Joseph Biden and organizations such as People For the American Way and the Alliance for Justice. These ideologues, who cannot prevail when the issue is honestly drawn, will attempt to do to a Bush nominee precisely what they did to Robert Bork 18 years ago — distort his record with false accusations to caricature him as an extremist.
From President Eisenhower’s nomination of Earl Warren onward, every Republican president has put someone on the court whom those most devoted to the true meaning of the Constitution have come to regret. Richard Nixon gave us Harry Blackmun, for example; the president’s father gave us David Souter. As George W. Bush deliberates on his his first nominee to the high court, he must keep in mind that millions of Americans who voted for him in both 2000 and 2004 did so precisely because they believed that he would nominate judges, and particularly Supreme Court justices, determined to be faithful to the Constitution as it was written, judges not so open to persuasion where first principles are concerned.
The President must understand that if he does not choose wisely he will disappoint these friends and supporters, probably beyond reconciliation. His staunchest friends and allies are prepared to join with him in the trenches to get a principled constitutionalist confirmed.
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