Monday, July 11, 2005

And so it begins...

We knew when President Bush was re-elected that he would likely have an opportunity to select at least one Justice to the Supreme Court. With Justice O'Connor resigning, the battle of wills and words has begun over the right person to replace her.

Most of the rhetoric I've listened to in the past week focuses on keeping the status quo. The undercurrent, from what I've seen, is that we mustn't topple the balance so far to the conservative end, that Roe v. Wade will somehow magically be overturned by osmosis. So the President is being exhorted to find another justice who will match O'Connor and 'maintain the balance'.

Will someone explain to me why this is more desirable than adding a strong judicial mind who will actually (*gasp*) compare the legal issues to the Constitution without a specific social agenda? I'm speaking of an agenda in either direction, by the way. Someone with an ax to grind on conservative issues is no more desirable to me than one with a liberal bias. What we need to do is reinforce our Constitutional roots - it is our strength and identity.

Today's editorial from Charles Krauthammer says it far better than I can.

On the topic of O'Connor's judicial 'flexibility' :

She had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation. Her idea of jurisprudence was to decide whether legislation produced social "systems" that either worked or did not.


Such elasticity earned O'Connor the title of "pragmatist," a coveted virtue in Washington. Today it is particularly prized by liberals who are happy with the judicial revolutions of the past half-century, and are delighted that an appointee of Ronald Reagan should have upheld them in pursuit of social stability.

The problem with ad hoc pragmatism, however, is that it turns the Supreme Court not only into a super-legislature, but into a continuously sitting one. Does anyone have any idea exactly how many reindeer are required to make a town's Christmas creche display constitutionally kosher? Or exactly how much weight you are allowed to give racial preference in hiring? The only way to know is to sue and go back once again to the Supreme Court.

His conclusion is my point, exactly :
... What we need is a nominee who has a judicial philosophy — grounded in constitutional principles that provide legal guidelines that politicians and citizens can understand and live by. I happen to prefer conservative ("originalist") to liberal constitutional principles. But either is preferable to none.