A Supreme opportunity

September 07, 2005|By Cal Thomas

ARLINGTON, Va. - 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 fool mistake" he ever made.

Richard Nixon nominated six justices to the bench. Two of them, Clement F. Haynsworth Jr. and G. Harrold Carswell, were rejected by the Senate. Four - William H. Rehnquist, Warren E. Burger, Lewis F. Powell Jr. and Harry Blackmun - were confirmed.

While Justice Blackmun, who authored Roe vs. Wade, was in the activist mode of Justice Warren, Mr. Nixon's nomination of Justice Rehnquist (and Ronald Reagan's elevation of him to become chief justice) was Mr. Nixon's greatest domestic legacy.

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 G. Roberts Jr., who clerked for Justice Rehnquist, apparently shares his demeanor.

With Judge Roberts' nomination to the court enjoying the announced support of several Democratic senators, it will be difficult for them to oppose him for chief justice. The question now is: Should Mr. Bush nominate an equally conservative person to the court to fill the remaining vacancy?

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 Mr. Bush 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 David H. Souter, Mr. Bush is not about to see his legacy tainted by someone who is 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 those newspapers like you, then you can achieve true independence.

Justice Rehnquist couldn't have cared less what the newspapers thought. He cared about the Constitution and the court. That is the model Mr. Bush used in selecting Judge Roberts, and it is the model he should use in his second selection.

The president should forget race, gender and all other meaningless considerations. He should, and I think will, nominate another justice with credentials at least as impeccable as those of Judge Roberts, whatever his or her background or personal status.

Liberal activist groups, which have failed to stop the Roberts momentum, will be whipping themselves and their wacky followers into a state of frenzy over whomever Mr. Bush selects as his next nominee.

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.

The 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.

Mr. 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 Mr. Bush's nominees in the same timely manner.

Cal Thomas' syndicated column appears Wednesdays in The Sun.

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