Supreme Limitations for Democrats
With rumors swirling that President Bush has selected Edith Brown Clement of the conservative 5th Circuit Court of Appeals to be replace Sandra Day O'Connor on the Supreme Court, Democrats can get to down the business of planning their response.
Their response should be to vote to confirm Judge Clement.
Why? In a nutshell, Democrats should grudgingly accept Clement because she simply does not cross the threshhold of unsuitability.
1. Anti-Choice History Not Sufficient for a No Vote
Democrats cannot justify blocking a nominee simply because of their position on Roe v. Wade. Virtually any Bush nominee will be anti-choice; they will differ in their judicial records on choice cases and in their public statements. Unless a Bush selection has a proven record of the most extreme choice positions (for example, by approving statutes ignoring the health of the mother), an anti-choice history is just not enough for a "no" vote. Like it or not, the Republicans have won the White House and Congress since 2000; Democrats will need additional grounds beyond the choice issue to block the GOP's nominees.
As for Clement, her statements on choice may be about as good as it's going to get for Democrats. As noted in the AP story this morning:
She has stated that the Supreme Court "has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion" and that "the law is settled in that regard."
2. Partisan Political Past is Sufficient Grounds for Opposition
Electoral realities may make it very difficult for Democrats to oppose a Bush nominee on reproductive rights issues alone. Partisan political activity is another matter altogether. Former Solicitor General Ted Olsen should not be digested by Democrats, given his high-profile role as the GOP's legal hit-man in the 2000 Florida recount fiasco. It should be noted that one major objection to Robert Bork in 1987 was his role as Nixon's hatchet man during the famed Watergate "Saturday Night Massacre."
3. Look for a Clear Record of Judicial, Philosophical Extremism
Democrats should hold their fire unless a nominee has a proven track record of extremist views from the bench or from previous public roles. Again, Robert Bork was undone in large part by a long and public record of controversial - and arrogant - statements that eviscerated his support even among Republicans like Arlen Specter:
"When we go back to the 1987 — and we hear about that all the time, the Judge Bork proceedings — the interest groups did not defeat Judge Bork — just didn’t happen. It was his judicial philosophy."
Neo-segregationists should be blocked as should anti-choice zealots who would uphold any parental notification scheme or reproductive procedure regardless of concerns for the health of the mother.
Unfortunately, virtually any Bush selection will look to constrain federal regulatory power with a much narrower reading of the Commerce Clause. Despite the threats to three generations of environmental, labor and health regulations posed by "Constitution in Exile" advocates, Democrats seeking to block a nominee on those grounds will surely find tough sledding in public opinion.
For Democrats and the litany of liberal interest groups, from NOW, NARAL and Planned Parenthood to the AFL-CIO, the NAACP and MoveOn.org, there will be a time and a place to draw the line with President Bush on Supreme Court nominations. If Judge Clement is indeed Bush's choice, then this is not that time.
For now, Democrats will just have to grin and bear it.
UPDATE: It is now confirmed that President Bush has chosen Judge John Roberts Jr. of the DC Court of Appeals to replace Sandra Day O'Connor. While Roberts' 1990 brief calling to overturn Roe v. Wade is problemmatic, Jeffrey Rosen of The New Republic argues that his nomination will hard to oppose.
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