- The Washington Times - Saturday, September 24, 2005

As President Bush considers his second appointment to the Supreme Court, it is worth pointing out that the appellate courts are filled with relatively young jurists whose conservative credentials are impeccable.

Reportedly under strong consideration for the 1990 Supreme Court nomination that was eventually wasted on David Souter, Judge Edith Jones (a 56-year-old Texan) has served on the 5th Circuit since 1985. Samuel Alito, a 55-year-old who worked for seven years in the Reagan administration and has much more in common with Antonin Scalia than their Italian heritage, has served on the 3rd Circuit since 1990. Michael McConnell, a 50-year-old who graduated from and taught at the University of Chicago Law School (the de facto think tank of conservative legal scholarship), has served on the 10th Circuit since 2002. A judge on 4th Circuit since 1991, 51-year-old Michael Luttig, a Texas native, was an assistant White House counsel in the Reagan administration before he clerked on the D.C. Circuit for then-Judge Scalia and for Chief Justice Warren Burger, whom he later served as special assistant.

If Mr. Bush is inclined to increase his short list in order to diversify the court in terms of sex, race or ethnicity, he should not reward Democratic stalling tactics or outright filibustering, which denied or significantly delayed appellate-court experience for several worthy Supreme Court candidates. Mr. Bush nominated Miguel Estrada in May 2001 for the D.C. Circuit, where he would have been the first Hispanic to serve on what is generally considered to be the second-most influential court in the United States. A Federalist Society member to whom the American Bar Association gave a unanimous “well-qualified” rating — which Senate Democrats have described as “the gold standard” — Mr. Estrada, who will celebrate his 44th birthday on Sunday, became the first Bush judicial nominee to be filibustered by the Democrats in 2003, after they lost their majority in the Senate. Before allowing her confirmation to proceed this year as part of the “Gang of 14” compromise, Democrats also filibustered 56-year-old California Supreme Court Justice Janice Rogers Brown, an unrelenting black conservative who was nominated for the D.C. Circuit in 2003.

Repeating verbatim the charge leveled by then-Associate Justices William Rehnquist and Byron White in their 1973 dissent in Roe v. Wade, Judge Jones filed a concurrence to her 1997 opinion in McCorvey v. Hill in which she criticized the Supreme Court’s Roe decision as an exercise in “raw judicial power.” To paraphrase: A twice-elected conservative Republican president and a solidly Republican-controlled Senate (whose GOP caucus has become increasingly conservative in recent years) would be rejecting their self-professed conservative philosophy if they failed to exercise whatever “raw legislative power” is necessary to guarantee the confirmation of a demonstrably conservative, preferably youthful, associate justice.

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