Tuesday, November 01, 2005

A nominee of quality

George Will was out in front of the conservative pack in denouncing Bush's nomination of Harriet Miers to the Supreme Court. He is again on target in supporting Sam Alito in no uncertain terms and noting the intellectually and politically bankrupt arguments the Democrats will have to use to oppose the Alito nomination:

[B]ecause of the glittering credentials that earned Alito unanimous Senate confirmation to the U.S. Court of Appeals for the 3rd Circuit, those Democrats who are determined to oppose him are unhappily required to make one of two intellectually disreputable arguments.

One is so politically as well as intellectually untenable that they will try not to make it explicitly. It is that judicial conservatism may once have been a legitimate persuasion but now is a disqualification for service on the Supreme Court.

To which there is a refuting question: Since when? Since 1986, when 98 senators -- including 47 Democrats -- voted to confirm Antonin Scalia, 98 to 0? Since last December, when Harry Reid, leader of Senate Democrats, said that Scalia would be a fine nominee for chief justice?

Reid doubtless would respond that Scalia would have been acceptable only because he was replacing someone comparably conservative -- William Rehnquist. Which brings us to the second disreputable argument Democrats will be reduced to making: Alito is more of a judicial conservative than was Sandra Day O'Connor and thus unacceptable because it is unacceptable to change the court's intellectual balance. This argument is triply flawed.

First, nowhere is that rule written. Second, the history of presidential practice -- Democrats should especially study FDR's sweeping alteration of the court's composition -- refutes the rule. Third, when the Senate voted in 1993 to confirm the very liberal Ruth Bader Ginsburg, former counsel to the American Civil Liberties Union, to the seat being vacated by the retirement of the conservative Byron White, 96 senators voted for her, including 25 Democrats still serving in the Senate. Including Reid. Including Pat Leahy, Ted Kennedy, Joe Biden, Dianne Feinstein, Herbert Kohl and Russ Feingold, all members of today's Judiciary Committee.

Will notes that Democratic leader Harry Reid (Nev.) warned Bush against nominating Alito and approved of Miers before the president made the Miers nomination. Bush shied away from that fight to his discredit, the nation's disservice and his supporters' disdain. With the Right behind Alito, Bush has properly stiffened his own backbone and nominated an unquestionably qualified jurist for the highest court in the nation.

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