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Bench Memos

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Four Things to Remember



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Not that Bench Memos readers need reminding, but . . . we ought not to forget:

First, there is no precedent or sound argument supporting the claim (one that, unfortunately, seems to have great currency in the press) that a President is somehow supposed to preserve “balance” on the Court, or to replace retiring Justices with new Justices thought to be like-minded. Clarence Thomas replaced Thurgood Marshall; Ruth Bader Ginsburg replaced Byron White. (Imagine what would have been FDR’s reaction to the claim that he had an obligation to replace the “Four Horsemen of Reaction” with similar jurists!).

Second, it is simply not the case that Justice O’Connor was a “moderate”. Justice O’Connor was a conservative. True, she made the chattering classes happy, and conservatives unhappy, with some of her votes. But those in the press need to remember: Justice O’Connor was essential to the Rehnquist Court’s work in criminal procedure, federalism, habeas corpus, and church-state matters. She was the fifth vote in Dale, Lopez, Morrison, Zelman, and joined or wrote many, many “conservative” opinions in questions involving search-and-seizure, the death penalty, Miranda, religious expression in the public square, etc. Over more than two decades, Justice O’Connor was a staunch and consistent ally of Chief Justice Rehnquist. So, even if there were some reason — and, I don’t think there is — for claiming that the President must or should pick a Justice “in the mold of Justice O’Connor”, that should be understood to mean, “a conservative Justice, committed to federalism.”

Third, there are the perniciously content-less words, “mainstream” and “extreme.” No serious journalist should permit invocations of these words to go unchallenged by Senators Schumer, Kennedy, etc. There is no chance — zero — that any Bush nominee will be (and not one so far has been), in a meaningful sense, “extreme”. As for “mainstream,” that word — when deployed by Senator Schumer — simply means “agrees with Chuck Schumer.” And, journalists should say as much.

Finally, no one should take seriously the crocodile-teary pleas from Senate Democrats like Patrick Leahy for a nominee who will “unite” the country, or requests that President Bush “fulfill his promise” to be a “uniter not a divider.” The Democrats could easily have “united” with the President, after all, by supporting John Roberts, one of the most decent, respected, and brilliant nominees in history. The fact is, given the givens, there are no nominees who can or will “unite” the country. We are divided, and we disagree about many things that matter. Because (unfortunately, perhaps) the Supreme Court has become the arena where our disagreements about things that matter play out, it is unsurprising that we disagree about who should sit on the Supreme Court. The President’s job is not to chase after a “unity” that the Senate Democrats would not, in any event, permit him to achieve, but to keep his promises and to take care of the Constitution by nominating someone who believes in judicial modesty and the rule of law.



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