July 5, 2005
The Supreme Court Circus is coming to townBy Thomas Lifson
The Supreme Court bans television cameras from its public sessions on the ground that it does not want its proceedings to become a 'circus.' Whether the august Court likes it or not, the struggle over the replacement to be nominated for retiring Justice Sandra Day O'Connor will be a circus beyond the wildest dreams of American showman P.T. Barnum.
Barnum is best remembered for supposedly saying, 'There's a sucker born every minute.' The biggest immediate political question raised by the forthcoming hearings is which political party will play the role of the sucker.
The financing of campaigns for and against the confirmation of Supreme Court appointees has become a virtual industry. An estimated $100 million dollars will be spent by left wing activist groups seeking to critique, besmirch, and discredit any Bush appointee, and by their conservative opponents seeking to burnish, defend, and support the nominee. The public has repeatedly shown that it doesn't like it when either party becomes shrill or nasty or is perceived to be breaking the implicit rules of conduct.
This means that the Democrats must be wary of being seen as a caricature, reflexively opposing any Bush nominee. But they have no choice. This is exactly what they must do, to keep their fundraising base from turning against them with a vengeance. The "progressive" core well understands that its only hope of maintaining a permissive abortion regime, driving religion out of the public square, and maintaining a robust social engineering role for the government is via Supreme Court fiat. Any move to turn the Court toward enforcing the actual wording of the Constitution threatens their last redoubt of government power. Like cornered rats, they will lash out with all their force at any provocation.
So the Democrats are being forced onto a path which will alienate the swing voters it needs to win presidential elections and Senate seats in those states not firmly in the blue camp. The only question is whether or not the Republicans, long called Stupid Party for their lack of political wiles, will have the wit to get out of their way.
The signs are not encouraging.
Conservatives, having lived through the verbification ['to bork'] of the name of distinguished jurist Robert Bork and the subsequent nomination of closet liberal David Souter by a Republican president, are in no mood to accept a nominee of uncertain commitment to conservative principles. Many on the religious right are speaking up against the President's good friend, Attorney General Alberto Gonzales. Renowned for his personal loyalty, the President is not a man to sit idly by and allow his longstanding associate to be ridiculed. Especially by his ostensible friends of lesser provenance.
I believe that the President knows his Attorney General's mind far better than any conservative activists do. But I hope that he does not nominate him out of an honorable impulse to defend his friend. If electoral considerations impel the President toward a history—making nomination of the Court's first Hispanic Justice, there are other highly—qualified candidates, such as Emilio Garza. Hispanics then would enjoy the glory of both a Supreme Court Justice and an Attorney General, courtesy of George W. Bush and GOP.
Because the Democrats will attack anyone he sends to them, there is no advantage to the President attempting to placate the Democrats with a moderate nominee. Instead, he should search for someone of utter integrity and of a sound conservative judicial philosophy. It is all the better if the Democrats are driven to paroxysms of strident outrage. They would be bathing themselves in voter repellant.
The ideal candidate would be a woman, because the retiring Justice is a woman. Many female voters wish to see the number of women on the Court grow or at least be maintained, not shrink. But having watched the confirmation hearings of Clarence Thomas, there is another reason why a female nominee is likely to fare better than a male.
Men are far more prone than women to do things, especially in their youth, which can be fodder for political smears. Renting an X—rated video, getting drunk, or randy behavior and off—color remarks are more characteristic of males than females, among homo sapiens. Everyone has secrets, but men's secrets are more likely to be behavioral and public in nature. Women's secrets tend to be private and connected to their personal relationships.
Moreover, the public, even in enlightened, post—feminist America, does not tolerate public abuse of women the same way it tolerates the smearing and tormenting of men. Hillary Clinton knows this well, and has used it as part of her most potent arsenal of tactical strengths. She would be wise to counsel her fellow Democratic Senators against visibly distressing a female nominee during Senate hearings. Assuming, that is, that she does not see them as potential rivals for the presidential nomination in 2008.
From my standpoint, the best nominee the President could present us with is Judge Janice Rogers Brown, so recently confirmed by the Senate that she has not yet even begun her duty on the DC Circuit Court of Appeals, the most important and highest ranking venue below the Supreme Court. Judge Brown is female, black, has a life story of enormous appeal, having risen from a sharecropper's family, and is a vigorous and articulate conservative. Numerous conservative commentators, from Rush Limbaugh on down, see the many virtues she would bring as a nominee and as a sitting Justice.
The reason that she is politically ideal is that she forces the Democrats into a self—defeating posture. They must oppose her, yet they just recently confirmed her. If they try to argue that she is the extraordinary exception to the deal they just forged with the GOP on avoiding the nuclear option, only the hard core fanatics on the left will buy their argument. Seventy—five percent or more of the public will see them as reneging on their deal. They can't confirm her and then say she is unqualified. If it ever comes to that point, the GOP would be seen as justified if it is forced to use the nuclear option, a move the public does not generally support.
But the GOP is very unlikely to have to use the nuclear option. There are enough Democrats up for re—election in 2006 who remember the fate of Tom Daschle, that they are unlikely to vote against Judge Brown, or even to vote against cloture, in the event of a filibuster.
There is one other huge advantage to a nomination of Judge Brown. She has a very public, very articulate position on the issue of takings — where the government forces a homeowner out of a longstanding abode, merely to garner greater tax revenue, or some other advantage to itself. The Kelo decision has electrified the public more than any other Supreme Court decision since Roe itself.
Politicians and pundits have been relatively slow to pick up on the public's anger and fear that rich developers, in concert with tax—hungry local officials, will seize their homes if property values rise to the extent that it becomes profitable for them to do so. The longstanding belief that a man's home is his castle is the bedrock of public opposition. But it has been given far greater force by the huge increase in property values most sections of the country have experienced over the past few years.
More people than ever before own their homes. The rise in property values in recent years has made them wealthier than they ever dreamed they would be. On paper, at least. But instead of relaxing and enjoying a sense of security their wealth should bring, suddenly they must worry about being expelled from their wise investment. By turning the American Dream into a nightmare, the Kelo Decision has seriously angered the majority of Americans.
The Kelo Decision offers a chance for the Republicans to redefine the meaning of the judicial mainstream. Let the Senate Democrats attack Judge Brown's rhetoric on property rights. They won't be able to help themselves. With every debating point they score against her, they drive another nail in the coffin of a future Democrat majority.
Now that's one circus I don't want to miss.
Thomas Lifson is the editor and publisher of The American Thinker.