Supreme lessons

When Ronald Reagan nominated Arizona’s Sandra Day O’Connor to the Supreme Court in 1981, conservatives were nervous because little was known about her. Mr. Reagan assured religious conservatives they had nothing to fear. Mr. Reagan told Rev. Jerry Falwell he had spoken to her (about abortion, the main concern of religious conservatives) and found her to be “OK” on that issue. Mr. Reagan assured Mr. Falwell and company they would not be disappointed.

I was vice president of Mr. Falwell’s Moral Majority at the time and went on ABC’s “Nightline” to express my reservations that conservatives might not like what they were getting. What I had seen of Justice O’Connor’s record did not persuade me she would favor restricting abortion.

I was right and Mr. Reagan was wrong. Conservatives were disappointed. Justice O’Connor has been the key vote upholding the extraconstitutional ruling known as Roe v. Wade.

There would be other justices named by Republican presidents who also were disappointments. Anthony Kennedy was chosen by Mr. Reagan after his administration misjudged the intensity of opposition to Judge Robert Bork. Mr. Kennedy has been a disaster on abortion and religious issues.

David Souter was nominated by the current president’s father after similar assurances by then White House Chief of Staff John Sununu that Justice Souter would be “OK” on issues about which conservatives cared. He wasn’t. Justice Souter has been as liberal as any justice in recent memory.

Despite her thin legislative and judicial record in Arizona, there were hints about Justice O’Connor’s legal philosophy from Eleanor Smeal, then president of the National Organization for Women. Last week, Ms. Smeal recalled she endorsed Justice O’Connor’s nomination before the Senate Judiciary Committee because “I knew then that O’Connor, although a conservative voice, would be one who would not permit the elimination of women’s fundamental rights, including the right to privacy.”

Instead of seeing this as a red flag, most conservatives held their tongues. They wanted to maintain “access” to Mr. Reagan.

This history is what makes conservatives nervous about the choice President George W. Bush will make, especially when he speaks of symbolism and the possible nomination of the first Hispanic justice, possibly Attorney General Alberto Gonzalez. Mr. Reagan tried symbolism by naming the first women, but he lost substance. We hear this President Bush has learned a lot from the mistakes of his father. Does this include naming a justice to the Supreme Court that reflects his often-stated views about wanting someone on the bench who doesn’t make law but upholds the Constitution? We are about to find out.

More than campaign promises, Mr. Bush’s first choice of a Supreme Court justice will reveal his core beliefs. He has repeatedly said he wants someone in the model of Clarence Thomas and Antonin Scalia. These are men who have lived up to the noble objective of faithfully interpreting the Constitution instead of reading their personal judicial preferences into it.

An unnamed “senior administration official” told the New York Times, “The president is going to pick someone who is a true constructionist and who is correct in interpreting the law.”

The left is already mobilizing to smear whoever is selected as “extremist” and “out of the mainstream” and someone will recreate “back alley abortions” and resurrect the Dark Ages. Conservatives say they have learned from previous court battles and won’t be fooled again. They will look beyond assurances a nominee is “OK” to the substance of that nominee’s record and philosophy. Nothing but delivery on the president’s promise will satisfy them.

This is the big one, the main event. If the president does not nominate someone who measures up to his often stated view of the court and the Constitution, he can forget about conservative support for anything he wants to do during the rest of his term. Even if he names someone eventually rejected by the Senate, he will get significant support from conservatives and momentum for nominating another conservative.

Perhaps it is hope trumping experience, but my guess is, despite a pro-choice wife and mother, Mr. Bush will be true to his convictions. I hope I am not exposed as a “false prophet.”

Cal Thomas is a nationally syndicated columnist.