Substance, not symbolism, should govern Bush's court choice

July 06, 2005|By Cal Thomas

ARLINGTON, Va. - When President 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. He told the Rev. Jerry Falwell he had spoken to her about abortion, which was the main concern of religious conservatives, and found her to be OK on that issue. He assured Mr. Falwell and company they would not be disappointed.

What I had seen of Ms. O'Connor's record did not persuade me she would favor restricting abortion.

I was right and Mr. Reagan was wrong. Conservatives were disappointed. Ms. O'Connor has been the key vote upholding the extra-constitutional ruling known as Roe v. Wade.

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

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

Despite her thin legislative and judicial record in Arizona, there were hints about Ms. O'Connor's legal philosophy from Eleanor Smeal, then-president of the National Organization for Women. Last week, Ms. Smeal recalled she endorsed Mr. 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 Bush will make, especially when he speaks of symbolism and the potential nomination of the first Hispanic justice, possibly Attorney General Alberto R. Gonzales. Mr. Reagan tried symbolism by naming the first woman, 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 who reflects his often-stated views about wanting someone on the bench who doesn't make law but rather 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 unfaithfully reading into it their personal judicial preferences.

Conservatives say they have learned from previous court battles and are not going to be fooled again. They will look beyond assurances that a nominee is OK and examine 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 who is eventually rejected by the Senate, he will get significant support from conservatives and momentum for nominating another conservative.

Perhaps it is a case of hope trumping experience, but my guess is that despite a pro-choice wife and mother, the president will be true to his convictions. My hope is that I am not exposed as a false prophet.

Cal Thomas's syndicated column appears Wednesdays in The Sun.

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