Monday, July 11, 2005

I don’t want to tick off the president of the United States, but I think nominating Alberto Gonzales to be the first Hispanic on the Supreme Court would be like throwing a party to which few people will come. And, loving this president as I do, I feel it is a duty to tell him so.

It is not that the attorney general would not be confirmed, he would. But then so will any nominee the president sends no matter how many millions are spent.

Once, two swords of Damocles hung over a high court nominee’s head — the filibuster and, more commonly, rejection by the Senate. Now, a sword hangs over the filibuster’s abuse — Majority Leader Bill Frist’s “constitutional option.”

Mostly, Republican presidents have had to worry about a Democrat majority thwarting their Supreme Court nominations — but not now. The elder President Bush came close to losing on Clarence Thomas, the immensely popular Ronald Reagan had two losses (Robert Bork and Douglas Ginsburg), and a Democrat-controlled Senate rejected two of President Nixon’s nominations (G. Harrold CarswellandClement Haynsworth).

There is, however, little serious talk of “confirmability” these days. Mostly, the talk is about judicial confirmations war, for its own lucrative sake. Why else would highly paid liberal lobbyists like Ralph Neas love it so?

The reason that confirmability is not much discussed is that this president has what Republican predecessors have not often had — a Republican-controlled Senate, plus 55 Republican senators and several Democrats running for re-election in Red States.

So what then is the problem of Alberto Gonzales that a Hispanic name and a bootstrap story will not solve? There are two.

The lesser problem is that to get the full benefit of a “first” many have to applaud loudly. The attorney general will not get that kind of applause. Notably, Italian Americans did not turn to the Republican Party in any noticeable numbers after Mr. Reagan appointed Antonin Scalia.

The greater problem is that Mr. Gonzales’ nomination will harm Republicans in the future in the same way the elder President Bush harmed his cause by raising taxes and nominating David Souter. The former was a decision the former president has acknowledged as his greatest mistake.

For the current President Bush, his father’s two political mistakes threaten to combine into one — the nomination of Al Gonzales. For this president “read my lips” translates into “I will nominate justices in the mold of Scalia and Thomas.” In other words, he promised to name justices along the constitutionalist spectrum of textualist to originalist.

Candidate Bush had no caveats. He did not add “unless I have to replace Sandra Day O’Connor or I have two seats to fill, in which case I will choose my friend whose record on interpreting the federal Constitution is as uncertain as Mr. Souter’s.”

Of course, there are two important differences between nominating Mr. Souter and Mr. Gonzales.

In picking Justice Souter, the elder Mr. Bush was misled by John Sununu and Warren Rudman, both pragmatists, as was the former president himself, with little affection for Republican Party supporters outside of New Hampshire. The elder Mr. Bush did not know Justice Souter, as this president knows his friend.

Yet, however Republican Al Gonzales may be, there is nothing to suggest that he is a jurist like Justices Scalia or Thomas, as the president promised. His record suggests otherwise. It suggests that he is pragmatist, at best like Justice O’Connor, and pragmatists on the bench tend to make law like politicians and not judges.

The other difference is that this President is not running for re-election. But others are.

Take, for example, Jim Talent, Missouri Republican, who is aiming to keep his Senate seat in 2006. He was elected in 2002 by a small margin. In Missouri (as in Georgia and Minnesota that year), the margin of single issue pro-life voters that came out for Mr. Talent was larger than the Republican margin of victory that gave him a Senate seat and that gave Republicans control of the Senate.

The enthusiasm of Republican Senate voters in 2006 matters to the future of this country, as it does in the general election 2008. Of course, the president’s own brother may aspire to a Bush legacy that, depending on this president’s looming nomination, may be too unforgivably uncertain to take another Bush gamble.

As the president himself has shown, the future of Republican electoral success requires the growth of the right, not just winning the middle. Nothing will deflate the balloon of swing and new voters than a disappointment on a Supreme Court nomination now.

Conservative opposition to Al Gonzalez is not just about how he would rule on certain hot button issues. The hope of the conservative movement is much more principled than that. It is a hope that this president will appoint justices who will reclaim the Constitution itself after decades of unauthorized amendment, corrosion and such distortion that American constitutional law today has little to do with the American Constitution itself.

Many share the president’s aspirations to name a qualified Hispanic to the high court.

In 2000, the Bush campaign in meetings with potential Hispanic supporters represented that a President Bush would appoint a Hispanic to the highest court. A president should keep his promises; all of them. Notably, the president’s brother named the first Hispanic to the Florida Supreme Court.

There are, in fact, many qualified Hispanic nominees with a solid record who would unite, and not divide, Republican supporters. A solid Hispanic nominee will also divide Senate Democrats from the special-interest groups that radicalize them.

Naturally, the president may not understand why, if he is to name a Hispanic, he should not name the Hispanic he knows. But no one chooses a friend or adviser in the same way that presidents must choose Supreme Court justices.

Lyndon Johnson erred in nominating his friend, Abe Fortas, and King Henry’s choice of his friend, Thomas Beckett, ended poorly, too.

Manuel A. Miranda, former nominations counsel to Senate Majority Leader Bill Frist, is chairman of the Third Branch Conference, a coalition of 200 organizations nationwide.

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