The Idea Mag - Issue 22 - October 23rd, 2005 - Front Page


Nominating Concern

[Please note that no where does this article mention the nominees name. This is not about her – I have no issue with her. This is about the choice to nominate her.]

It's About Choice
Isn't every nomination? It's the President's job to nominate judges, including those on the Supreme Court. Since President Bush was elected to that office, the nomination is his choice. You could say it's his right to choose. From the start I'm a bit concerned that the President let Congress consult with him over his choice. There's no historical precedent for that. The conservative goal for the court is to pull to it back from infringing upon the power of the legislative branch, and in the midst of a nomination the executive branch surrenders power to Congress?

Although it is the President's choice, and his alone, that doesn't mean I have to agree with his choice. And since – unlike many who daily criticize, ridicule, and second guess his decisions – I actually voted for him, I think my opinion on this should count for something. In fact, I think that the opinion of those who voted – and hold to the same core beliefs as the President – should have more influence than those who continue to oppose him.

Where's The Beef?
When I heard about the nomination my first thought was, “Wow, he already picked the next nominee.” I really didn't have any idea who she was. But that didn't surprise me, I didn't know who John Roberts was either – I just figured it wasn't the news report, and sometimes anchor, by the same name.

What did surprise me was that none of the venomous talk show hosts I mindlessly follow knew anything about her. Those guys live and breath this stuff – or at least spend a considerable amount of time studying these things – shouldn't they know more about her?

After realizing they didn't, I had to wonder why a clearly strict constructionist wasn't nominated. Why an unknown? Why someone without a judicial track record? Why not someone who's obviously another Thomas, Rehnquist, or Scalia?

At that point I could only think of two answers. Either she's the best choice, what we were promised, a originalist, a constructionist – and it just so happens that she's an unknown with no judicial background and some past statements that would lead to major concern by many conservatives. Or, maybe it's that she would be somewhat of an originalist, somewhat of a constructionist, but she's not outspoken on those issues so there would be less of a fight, less of a controversy, less of a battle of ideas.

If the latter is true, why bow to the pressure instead of stand for the right? First give more power to Congress when it comes to choosing the nominee, then choose a second best unknown to avoid proclaiming a core belief? Is it important to have a court with an originalist point of view? Then shouldn't that issue be publicized and not hidden?

But maybe the former is true, maybe she's the best – and just happens to be unknown.

Dobson Double Take
Then came Dobson's assurance that although he couldn't tell his listeners the information he'd been given, he was comfortable with the nomination. What? Maybe we really are trying to sneak one in under the radar. Since when did we adopt the practice of liberals – don't tell them what you believe, they'll never go for it, keep all that quite until you're in power. Since when are we ashamed of our ideals, our beliefs, the fundamental values that we believe are essential to a strong America?

But then Dobson revealed that he was simply given some information relating to her stance on abortion. Information that would become publicly available shortly after his conversation with Karl Rove, he just got a jump on the rest. That still concerned me for other reasons – but Dobson wasn't finished. Rove also told him that the list was restricted to women. And that there may have been other choices, but they declined.

What!? Now there's an affirmative action quota system for the Supreme Court? That's ridiculous! We're getting what now seems to be a 'not-quite-the-best' choice because of some desire to please left leaning calls for a court with a specific gender makeup? This is incredible! Why! Why? Why.

Great Misconceptions
And now, after a few weeks of confused controversy, we all know that she is (gasp) probably (bigger gasp) pro-life. So what? How does that matter to anyone? It shouldn't. But now we see a divide between originalist who believe the court should only enforce the constitution, and some conservatives who don't have a problem with judges making law, just as long as it matches their views.

It's not the Supreme Court's job to legislate anything, much less morality. I don't care if a judge is pro-life or pro-choice. I care that a judge be very solemnly aware that they are to enforce existing law, not modify, not infer, not write new law. I want a judge who realizes that recent court decisions have been based upon concepts that the constitution only speaks of when you 'read between the lines' and upon the laws and accepted practices of other countries.

I want a judge who – from their judicial bench – views Roe v. Wade as bad law, not bad morality. Give me a judge who recognizes that the constitution affords no right of abortion – and really, as a judge, it wouldn't matter if, at the same time, he lobbied congress to amend the constitution and add that right.

The thing that we battle today in the courts is not the definitions of life, or the establishment of marriage. They are but the external symptoms of the battle. The battle is over the power of a court comprised of 9 unelected, unaccountable judges to amend their morality, their philosophy, their beliefs to our constitution. It does not matter whether those values be conservative or liberal, religious or atheist.

The battle is over whether we are a democratic republic, or a judicial monarchy. It's not about overturning Roe v. Wade.

So when I see a unknown nominee, with no clear stand on what the court should and should not be, that in ways seems to be chosen to 'sneak' by, and picked in part because of a gender quota, who is easily aligned with a most inflammable – yet simply symptomatic – judicial issue, in perhaps an attempt to rally the base around a single specific cause and not a fundamental judicial philosophy, I have to show some concern.

And if it bothers you that I won't simply nod my head in support of the President I helped elect – don't worry, it's not because I'm negative. It's not because I'm a pessimist. It's not because I no longer support his presidency. It's because I'm thinking of the future. I don't want the next president to have the personal morality of Bill Clinton and the social philosophy of Arlen Spector. I don't want Rudy Giuliana. I don't even want another President Bush.

I want something better.

That's positive, that's optimistic.