My reaction to Justice Sandra Day O’Connor’s retirement was almost as positive as my reaction in 1981 was negative when the Reagan administration announced it would appoint a woman to the Supreme Court.
It wouldn’t matter if all nine Supreme Court justices were women, if these were the nine best people available. But to decide in advance you would appoint a woman and then look only among women for a nominee was a dangerous gamble with a court that has become dangerous enough otherwise.
The recent outrageous Supreme Court decision making anyone’s home prey to any politician who wants to confiscate it, using the magic words “public purpose,” shows a court full of itself and blind to the havoc it is leaving in its wake.
Though Justice O’Connor was one of the four who opposed this latest outrage, over the years she contributed more than her share to the legal uncertainties and confusions resulting from such nebulous notions as “undue burden” and other “nuanced” policymaking that split the baby instead of drawing a line.
The political temptation may be great to appoint a Hispanic justice or another woman or some other nominee selected on the basis of group identity rather than individual qualifications. At this crucial juncture in the court’s history, that would needlessly repeat the mistake that brought Sandra Day O’Connor to the high court in the first place.
The political path of least resistance would be to nominate someone who can get confirmed by the Senate without a long political battle that would polarize the country. Another little-known “stealth” nominee like David Souter might fill the bill but the track record of Justice Souter’s disgraceful disregard of the Constitution should warn against going down that road again.
Then there are candidates with a “conservative” label who lack the toughness and integrity to resist the pressures and temptations to accept ideas that will win praise in the media and among law school elites who favor liberal judicial activism.
Among the “conservatives” who succumbed and “grew” over time to the left is Justice Anthony Kennedy, once touted by some conservatives as “Bork without a beard” but who turned out to have neither the intellect nor the strength of Judge Robert Bork. One of his former colleagues on the 9th U.S. Circuit Court of Appeals warned my wife and me, early on, that Justice Kennedy was not strong.
The first time I saw Justice Kennedy on television addressing and obviously trying to ingratiate himself to the American Bar Association, I was reminded of what that judge had said of him.
Another Anthony Kennedy might fool enough conservatives and appease enough liberals to get confirmed without a big political fight but our children and our children’s children would paying price in decisions as weak, vacillating — and dangerous — as those Justice Kennedy has rendered.
President Bush has taken the long view on many issues he easily could have avoided and saved himself political trouble, including Social Security and drilling for oil in Alaska. So we can hope he will be prepared to spend some political capital in a tough Senate confirmation fight by nominating someone with both dedication to the Constitution and the strength of character to ignore the pressures and temptations to go along with fashionable “mainstream” judicial activism.
Whether Senate Republicans will have the fortitude and unity to make their majority mean something is another question. The McCain mutiny and sellout against the Republican attempt to stop Democratic Senate filibusters is a sign this may be the weak link in any effort to restore the rule of law in our courts.
Another weak link are those who think the Senate should not “waste” so much time on judicial nominees but devote its efforts to other things considered the “real” issues of the day.
Recent court decisions — the one destroying homeowners’ property rights was only the most outrageous — should make it clear that preserving the Constitution is the real issue.
Thomas Sowell is a nationally syndicated columnist.
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