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Both sides have been gearing up for a brawl, and now...

July 02, 2005

Both sides have been gearing up for a brawl, and now it appears that it will be a double bill. In coming months, President Bush and the Senate will probably be filling two Supreme Court seats: those of Sandra Day O'Connor, who resigned Friday, and Chief Justice William H. Rehnquist, whose health is in peril. This makes it doubly important to establish some ground rules. They have been in flux since the bitter fight over President Reagan's failed nomination of Robert H. Bork almost two decades ago. Here, though, is what they should be.

First, advise and consent means advise and consent. Senators are entitled to make a full, independent judgment on the merits of a president's Supreme Court nominee. This is a lifetime appointment to a separate branch of government, not a president's choice for a job in his own administration. The president takes judicial philosophy into account in making his choice, and senators should do the same. The president's choice is owed no special deference.

Second, judicial philosophy means judicial philosophy. It does not mean political ideology. What's the difference? Judicial philosophy is about process: how a judge interprets the law to reach a conclusion. Political ideology is about the result: what policy gets implemented. A judge should have a coherent judicial philosophy and follow it even to a conclusion he or she would not prefer.

Third, judicial philosophy reveals itself through specific cases. Senators have the right to ask about specific cases, real and theoretical, and to expect an answer. The notion that nominees shouldn't "prejudge" issues they could face on the court is a red herring. Every sitting member of the Supreme Court, and of lower courts, has prejudged dozens or hundreds of issues in the course of his or her job. No one thinks this disqualifies them from continuing to judge.

Fourth, senators are entitled to take their time on what may be the most important votes they will cast, but the president is ultimately entitled to a yes or no on his nominee. In other words, no filibusters. They are an insult to democracy and will come back to haunt the party that misuses parliamentary process in this way.

Bush starts this battle in a seemingly towering position, with his party in control of the Senate. But not every Republican will support anyone Bush might nominate. If he overreaches, he will be forced to compromise. The president's plummeting approval ratings also offer a caution about the perils of governing from the far right. Especially if he has two seats at his disposal, Bush may decide to compromise on at least one before the battle. That would be wise of him. But we are in no position to insist, unfortunately.

Well, take that back. We do insist on one thing: Bush should not nominate Justice Clarence Thomas for chief justice. Thomas purposely misled the Senate at his original confirmation hearing 14 years ago, insisting he had no opinion on the hot-button Roe vs. Wade decision. Since then he has repeatedly shown his deep opposition to Roe. For the Senate to confirm him as chief justice now would say to the world that the contempt Thomas showed for that institution was fully justified.

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