Is this any way to run a country?

All of Washington is a buzz with the nomination of John Roberts to the Supreme Court. The presidential appointment of a Supreme Court nominee is perhaps the single most important decision a president can make. The president’s ability to influence the land’s highest court allows him to shape the judicial, if not, political landscape for decades beyond his own presidency.

Given the importance of such a decision, just how does the President select a nominee? According to a recent Newsweek article, the President met with Judge Roberts for a few hours where they got to know each other. They talked about family, school and the fact that Roberts had small-town values. They chatted long enough for the president to know that Roberts was his man. For several hours the two spoke to each other and, if the article is correct, the two men never discussed the specifics of the judge’s judicial philosophy. Can you imagine these two men, sitting in the personal residence of the White House and talking about everything but the specifics of Judge Robert’s judicial philosophy? What else matters when appointing a Supreme Court justice?

Of course this is the game modern Republican presidents have to play. Republican presidents are forced to find the most conservative nominee that has no paper trail to prove that he or she is in fact a conservative. They must have unsurpassed educational and legal training. They must be the best and the brightest of their generation. But most importantly, they must have expressed no opinion on any of the controversial issues of our time.

Think about this for a moment. The president must limit his search for a lawyer who has never expressed an opinion on the most important legal issues of our day. Again, I repeat, a lawyer who does not have an opinion?! This is like commissioning an artist who has never painted - an artist who is qualified to paint, but has never actually painted anything. The artist may have gone to a great art school (Harvard). They may have studied the masters (clerked for Justice Rhenquist), they may even have some paint by number paintings they did themselves (rulings while on the Federal Court of Appeals). However, the artist must have never painted an original work of their own (no opinion on the role of the Supreme Court). Who would commission such an artist?

Why have we gotten to this position? It is due to one over-reaching decision in 1972. Of course, I am talking about Roe v Wade. Today’s selection of a Supreme Court nominee has been reduced to one, and only one criterion. Where does the nominee stand on abortion? In the end no other issue matters. Affirmative action, eminent domain, civil rights and even church and state issues pale compared to the abortion issue.

The Democrats demand a candidate that will support abortion on demand - the essence of the 1972 decision. The Republicans try to find a candidate who has no record on the subject. At the very least the candidate must have enough double speak so that no one really knows how they will rule on the subject.

For the life of me I do not know why Republican presidents play the game this way. Quite frankly, their record at playing this game stinks. Three members (the majority) of the liberal wing of the Supreme Court were nominated by Republican presidents – Stevens, Souter and Kennedy. Souter and Kennedy were stealth candidates; candidates with no defining legal trail. Republicans chose them not because they were the best and brightest conservative jurists of the day. They chose them because they appeared conservative but no one could prove it. Since their appointment these justices have aligned themselves with the liberal wing of the court. More often than not, they have voted counter to the views held by the president who nominated them.

This brings me to my final point. George W. Bush ran on a platform of electing conservative judges who would not legislate from the bench. There is no surprise here. The voting public knew there were going to be vacancies in the Court during his tenure and they knew what type of judge Bush would appoint. The fact that the president plays the political game and is forced to limit his choices to nominees with a stealth record is no way to select a Supreme Court judge.

I hope and pray that Judge Roberts is the type of justice that President Bush promised he would appoint. I have no reason to think otherwise. The real shame in the matter is that I am left with nothing but a hope and a prayer. Of course, there is no written record to prove otherwise.


Originally published August 2005 - LDN