- The Washington Times - Tuesday, September 6, 2005

Dwight Eisenhower came to regret the judicial activism of the chief justice he nominated. Ike called his choice of liberal California Republican Earl Warren, “The biggest damn mistake” he ever made.

Richard Nixon nominated six Justices to the bench. Two of them, Clement Haynsworth and G. Harold Carswell, were rejected by the Senate. Four — William Rehnquist, Warren Burger, Harry Blackmun and Lewis Powell — were confirmed. While Blackmun, who authored Roe v. Wade, was in the activist mode of Earl Warren and Warren Burger was dragged to the left by his “Minnesota twin” Blackmun in several important cases, including Roe, Nixon’s nomination of Justice Rehnquist (and Ronald Reagan’s elevation of him as chief justice) was Nixon’s greatest domestic legacy.

Chief Justice Rehnquist slowly, but eventually and effectively, moved the Court not so much in his direction but toward what the Founders had in mind when they wrote the Constitution. He single-handedly anchored the conservative wing of the court until reinforcements arrived. He had one of those qualities rare in today’s Washington: the ability to hold strong convictions while maintaining good relations with those who held different views. John Roberts, who clerked for Justice Rehnquist, apparently shares his demeanor.

With Judge Roberts already enjoying the announced support of several Democrat senators, it will be difficult for them to oppose him for chief justice. The question now is: Should President Bush nominate an equally conservative person to the court? He should if he wishes to remain consistent to his often proclaimed desire to have a court that makes decisions based on the Constitution and not the personal whims, prejudices and objectives of individual judges. No political doctrine has been stated and restated by this president as much as this one. To go against it now would be the political equivalent of the president denying his faith.

Mr. Bush gets it when it comes to ideology. Unlike his father, who listened to top aides and gave the country the liberal disaster David Souter, whom Sen. Edward Kennedy praises, Mr. Bush is not about to see his legacy tainted by a closet liberal.

The great temptation in Washington is to do things that please the social and journalistic elites. If you don’t care about invitations to the “right” social events and you are unconcerned about whether you are liked by those newspapers, you can achieve true independence.

In a tortured New York Times editorial on Chief Justice Rehnquist, the newspaper exhibits an attitude that must resemble that of Satan when someone he is after gets away to the other side. The Times consoles itself by noting the battles Justice Rehnquist lost, not those he won. It could only say the “final word on his service … will be history’s, and it is likely to view him as hardly a great jurist, but one who loved the court and had a significant influence on it.”

Chief Justice Rehnquist could have cared less what the Times thought during his life and the same could be said about the paper’s prediction about his legacy. He cared about the Constitution and the court. That is the model President Bush used in finding and selecting John Roberts and it is the model he should use in his second selection.

The president should forget race, gender and all other meaningless considerations (gender considerations produced Sandra Day O’Connor, who has turned out less than conservative when it mattered most). The president should, and I think will, nominate someone with credentials at least as impeccable as John Roberts whatever their background or personal status.

Liberal activist groups, which have so far failed to stop the Roberts momentum, will take the ideological equivalent of Viagra to whip themselves and their whacky followers into a frenzy over whomever Mr. Bush selects. Watch for those rusty coat hangers to reappear in TV ads, suggesting the self-butchering of pregnant women who might be denied their “right” to abortions. Watch also for the left to invoke the image of blacks being denied the right to vote.

Mr. Bush’s next nominee can distinguish himself, or herself, by overcoming these smears with dignity, intellect and a reminder that devotion to the Constitution, as written, is the best protection for the rights of all.

President Bush won the election. He gets to name judges who represent his judicial outlook. That’s what President Bill Clinton did. The Senate should confirm President Bush’s nominees in the same timely manner.

Cal Thomas is a nationally syndicated columnist.

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