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Error by Consensus


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Senator Ted Kennedy wrote on the Fourth of July that President Bush should nominate a “consensus” candidate to replace Justice Sandra Day O’Connor–a nominee who can command a “broad bipartisan majority.” The premise is being planted: If Senator Kennedy rejects Bush’s nominee, it will be Bush who acted divisively.

Divisiveness is overrated as a sin. Whether a justice is a faithful servant of the law is more important than whether her nomination occasions discord in the Senate and the op-ed pages.

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As it happens, Justice O’Connor’s career demonstrates the futility of the search for judicial compromise. Confirmation battles have gotten more bitter, not less, during her time on the Supreme Court. Doubtless this trend has had many causes. But surely one of them was the growing importance of the Supreme Court in American life. O’Connor contributed as much as any justice to the Court’s increasing power. And it was the very traits that her liberal admirers are now counseling the president to seek in a replacement that made this expansion of power possible.

The lack of rigid principles for which O’Connor is being applauded made it easy for her to find compromises in particular cases. This moderation meant that no party ever knew that it had definitively won or lost. Supporters and opponents of abortion; friends and foes of school prayer; activists for and against racial preferences; nationalists and federalists: All had a chance of winning her vote for their cause in the next case, less because she was applying principles impartially than because she was not applying principles at all. But the lack of clear rules made the Court’s will that much more important. Justice Scalia’s relatively rule-bound jurisprudence constrains his decisions in a way that Justice O’Connor’s jurisprudence never did. If the justices are going to be able to follow their whims–and are going to gradually expand the field of issues they take it upon themselves to resolve–then it becomes that much more important for political activists to make sure that the next appointee to the Court shares their views and sensibilities.

“O’Connor’s jurisprudence was a recipe
for endless political conflict within
and around the courts.”

Justice Scalia is often described as a “polarizing” justice. But if his jurisprudence were to prevail, over time there would be fewer people marching in front of the Supreme Court–because the Court would no longer be handing out large political victories. O’Connor’s jurisprudence, on the other hand, was a recipe for endless political conflict within and around the courts.

The Court has helped bring into being a significant degree of polarization about itself–so much that it is not at all clear that any candidate could generate a consensus. What the president should instead seek is a candidate who is committed to the rule of law. The rule of law entails predictable, because rule-bound, judicial decisions. It entails respect for the intentions of the sovereign people who ratified the Constitution and who ratified the amendments to it: If what they ratified needs to be changed, change should occur through a lawful process of amendment rather than judicial revision. It entails some respect for precedent, but does not confuse the stability of Court-made “constitutional law” with fidelity to the Constitution.

If the president can find a thoughtful proponent of that kind of jurisprudence who can win confirmation from the Senate, he should nominate him–and let Senator Kennedy vote how he may.



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