Mr. President, You’re the Man     9/22/2005
By Jan LaRue, Chief Counsel

The Constitution gives the President sole authority to choose judicial nominees.

This is where grace and accommodation get you with power-hungry politicians—disrespect for the office and the Constitution, unwarranted demands and dilatory delays. Senate Democrats are once again “urging” President Bush to “share” his constitutional nomination authority with them under threat of filibustering his nominee.

Given the fact that the President met with 70 or more senators to give them the courtesy of listening to their “suggestions” before naming John Roberts to the first Supreme Court vacancy, some are once again acting as if it’s an obligation.

It’s a cheap power grab, Mr. President. Push ’em back—push ’em back—way back to the Constitution.

After a White House breakfast meeting today to discuss the next Supreme Court nominee with Sens. Bill Frist (R-Tennessee), Arlen Specter (R-Pennsylvania), Harry Reid (D-Nevada) and Patrick Leahy (D-Vermont), King Solomon is validated once again: “There’s nothing new under the sun.”

As speculation mounts over replacing Justice Sandra Day O’Connor, in light of the sure confirmation of Judge John Roberts as the next Chief Justice, we’re hearing the Democrats’ mantra once again: “We have a right to an O’Connor clone.” It’s the “balance of the Court” drivel that needs a who-won-the-election reality check, accompanied by a primer on the Constitution.

The comments follow the inside-the-Beltway buzz yesterday that the Democrats are threatening to filibuster. Mr. President, you continue to tell terrorists Americans will never give in to their threats, and rightly so. The Democrats’ huffing and puffing doesn’t even qualify as “bush league.”

Then there’s Specter’s “advice” to the President, which tells us his good-boy period has passed as quickly as the shelf life of a peach. According to Fox News:

Specter also said Wednesday that he suggested that the president delay picking O’Connor’s replacement until more is known about Roberts. … Specter said he had spoken to O’Connor and she is prepared to stay on until June 2006 if asked. “It would be quite a sacrifice for her, but she’s prepared to do it if she is asked. By next June we’ll know a lot more about Judge Roberts ... than we do today,” Specter said.

It would be a greater sacrifice for the country. Consider her most recent comments.

O’Connor spoke to 125 law students at Arizona State University on September 19. According to the Arizona Republic, September 20, when asked about her “sense” of the [Roberts] hearing and whether he had been “evasive” when compared to her hearing, she said, “I didn’t know when I was confirmed how I would decide issues.”

The tragedy is that her opinions, as muddled as many are, tell us why she “didn’t know.” And it’s the biggest qualifier of all for judicial nominees. Notice that she said “how” she would decide. She didn’t know but should have.

Judge Roberts knows, as his opinions on the Court of Appeals for the D.C. Circuit prove, and said so numerous times during his hearing. For example:

All judges are acutely aware of the fact that millions and millions of people have voted for you [senators] and not one has voted for any of us [judges]. That means that you have the responsibility of representing the policy preferences of the people. ... Our job is a very different one. We have to consider cases that raise the question from time to time whether a particular piece of legislation is constitutional. And we have to limit ourselves in doing that to applying the law and not in any way substituting ourselves for the policy choices you’ve made.

It’s the Constitution first and foremost. Judges aren’t policy makers. Judge Roberts called himself an “umpire” calling balls and strikes, who doesn’t get to bat or pitch. He follows the rules and doesn’t rewrite them.

Justice O’Connor was want to do that, and when she did, it resulted in the very “fuzziness” she criticized in her speech. Try making sense of her concurring opinions holding the display of the Ten Commandments on public property unconstitutional this past term.

Reid announced yesterday that he won't vote to confirm Judge Roberts. One of his "reasons" is: "Roberts has been a mainstream judge on the D.C. Circuit but he's only been there two years."

When Harry met Sandy, it was "mainstream" at first sight. What was there about O'Connor that made her so easily confirmable, given the fact that she had served less than two years on the intermediate Arizona Court of Appeals and had zero time as a federal judge?

It's what happens when a president makes a political promise to put the first woman on the Supreme Court rather than a promise to appoint the most qualified person--one who knows that the how of decision-making rests first with the U.S. Constitution.

Mr. President, Americans appreciate and continue to expect you to fulfill your promise to them to name judges who clearly demonstrate their commitment to the Constitution and know that it, and not they, are the supreme law of the land.

Name the best-qualified and proven “constitutionalist” to replace O’Connor as soon as Judge Roberts is confirmed, regardless of sex, race or ethnicity. Let the American people decide the consequences of partisan political hacks who try to intimidate you into surrendering your constitutional duty.

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