"Do as I say" alert

Here's hoping the President doesn't fall for the sucker play that the Senate's Democrats and even some squishy Repubs are setting up: the notion that only a "moderate" could replace Justice O'Connor. This is a crock, as former Pres. Clinton well knows. Why? He replaced Justice Byron White, who was one of two dissenters in Roe v. Wade (Rehnquist was the other), with ultra-liberal Ruth Bader Ginsburg.

Manuel Miranda sums it up:

The call for balance is vapid given that a president is elected with the understanding that he will nominate someone to the Supreme Court in keeping with his judicial philosophy. George W. Bush made this a cornerstone of his campaigns. If a national election is not sufficient to gauge public opinion, a Gallup poll in July found that 70% of Americans want the high court either to be more conservative or to stay as conservative as they perceive it now to be. An Opinion Dynamics poll one week later asked this question: "When a Supreme Court justice retires, do you think the president has an obligation to replace the retiring justice with another justice with similar legal and political views?" An overwhelming 67% said no. The president is on sound footing if he leans to the right.

Not surprisingly, there is also a double standard. In 1993, when President Clinton needed to replace the retiring associate justice Byron White, a John Kennedy appointee who had been one of two dissenters in 1973 (together with Justice Rehnquist) on Roe v. Wade, no one called on him to maintain the "balance" of the court. He nominated the most pro-abortion feminist activist he could find. Ruth Bader Ginsburg was then confirmed by the Senate with a vote of 96-3.

But the left is so reliant on its balance argument that when Republican senators, and this writer, pointed out that Justice Ginsburg had posited that prostitution was constitutionally protected and that the age of consent should be lowered to 12, the same people who have distorted the records of Bush judicial nominees echoed in outrage and obfuscation. The problem is that it's true.

In papers Ms. Ginsburg wrote while she worked for the ACLU, she argued against criminalized prostitution and said that it was "arguably within the zone of privacy protected by recent constitutional decisions." In lawyer-speak that means that she, at least, tended to think prostitution fell under the constitutional right to privacy. She did not say "some would argue" or that it was "arguably not within the zone of privacy." And if arguably Mrs. Ginsburg did not aim, as her defenders say, to lower the age of consent, she was guilty of sloppy lawyering when she recommended that a statutory-rape law that had the consent age at 16 be replaced by a proposal that had it at 12.

But that is not all. The woman nominated to replace Roe's leading dissenter, Byron White, was not only pro-abortion, she wrote that the federal government should be constitutionally required to subsidize elective abortions. She urged coed prisons; criticized the Boy and Girl Scouts for perpetuating "gender" stereotypes; and suggested that "Parents Day" might replace Mother's and Father's day. Ms. Ginsburg had also opined that a law restricting the rights of bigamists "is of questionable constitutionality since it appears to encroach impermissibly upon private relationships."

Of course, when they confirmed Justice Ginsburg, liberals did not worry about balance. Actually, if not for their double standard, one might think that they had no standards at all.