Today’s Washington Post has an editorial that encourages President Bush to pick “the right nominee” to replace Justice O’Connor. Gee, I wonder what the “right nominee” looks like to the Post. Well let’s take a look:

In the past, presidents have nominated justices to the Supreme Court who have been received with a national outpouring of acclaim. American society is probably too politically riven for President Bush to manage such a triumph today. Still, broad-based support should remain Mr. Bush’s critical goal as he contemplates the replacement of Justice Sandra Day O’Connor.

I am curious as to which nominees they are referring to when they write about “a national outpouring of acclaim”? Lets see so they must be talking about Justice Ginsburg and Justice Breyer both nominated by Clinton? Well, not really. Conservatives did not like either one of them but the Senate Republicans were out of power and played nice thereby giving President Clinton his picks. How about Justices Souter and Thomas both nominated by the first President Bush? Again nope. Thomas endured a humiliating confirmation process and Souter has screwed Conservatives at every turn. Ok, I am stumped. I went to the Supreme Court website and saw a listing of all the Justices. I can’t think of one in recent memory that made both sides stand up and say they are happy.

There is an enormous difference between a judicial nominee confirmed on a party-line vote and one who receives strong bipartisan backing. This requires of Democrats a fair-minded assessment of the president’s choice. Yet it also requires that Mr. Bush search for a nominee who meets the standards of those acclaimed selections.

Why does it make a difference whether it is a part line vote or not? Republicans have confirmed Democratic Justice out of deference to the President. Have Democrats done the same? Doubtful.

The first is that any nominee should have professional qualifications of the highest caliber. This point would be too obvious to mention, except that presidents have not always paid it much heed. Particularly in the current political environment, it is essential that there be no suspicions that the nominee was named because of narrow ideological considerations or political loyalty. Mr. Bush would do the country, and himself, a great favor if he can convincingly state that his nominee is among the small group of American lawyers most qualified to serve on the Supreme Court.

Ok not much to complain here other than to ask whose standards of qualifications are to be used? The Post’s? Also, when you read “was named because of narrow ideological considerations”, insert the phrase “believes Roe vs Wade should be overturned”.

Another critical factor is temperament. By this we do not mean being a nice person or being genial in the courtroom; great justices are sometimes neither. The world of conservative jurisprudence is today split between judges content to decide specific cases and those — such as Justice Antonin Scalia — who insist on using the bench as a kind of pulpit for a larger war over American law and society. A nominee who strikes such a pose not only invites opposition from those who disagree with his or her stances but displays precisely what the court does not need: a lack of modesty and a grandiose conception of the judicial function. Justices only rarely get to be heroes and should not imagine themselves as such.

Oh man this is a good one. Here is the point where the Post starts pointing out the flaws in previous Conservative nominees. Get this “who insist on using the bench as a kind of pulpit for a larger war over American law and society.” Wow, you read that right. Justice Scalia is waging a war on American law and society! A WAR mind you! I wonder if the Post considers our current efforts at destroying Islamic terrorism to be a war.

It is a known fact that Liberals have been unable to enact the majority of the laws that they want by using the elected branches of the government. They instead have turned to the Courts and have been slowly undermining settled American law and society, finding that all sorts of hidden rights and freedoms exist in the Constitution. But the guy who wants to undo that damage and actually go by what the Constitution says is waging a WAR.

A related point is that a nominee who strongly believes in the stability of precedent — the legal principle of stare decisis — is far more likely to garner broad support than a nominee who generally regards past decisions as ripe for overturning. Justice Clarence Thomas is more radical than Justice Scalia not because he has a more radical view of how cases should be decided in the first instance but because of his willingness to overturn age-old precedents. It is far easier to support a nominee whose approach to cases is not one’s own if that nominee treats decisions of past eras with respect and deference.

I am assuming the Post is referring to “age-old precedents” such as the Dred Scott decision. What about all the unjust rulings that Brown vs Board of Education overturned? I would say that over turning bad precedent is a good thing. Again, when you read “age-old precedents”, insert Roe vs Wade, which is only 32 years old. I guess that is the new standard for “age-old”. Many competent scholars will agree that Roe was not based on law or precedent but on something pulled straight from the air. I think it is funny that only Liberal friendly precedents are set in stone, never to be overturned.

Mr. Bush has made clear that he is looking for a nominee who will strictly interpret the Constitution and not be looking to discover novel rights within it. This position will have greater integrity if he nominates someone who applies such a skeptical eye across the board; fidelity to the Constitution as the Framers wrote it can be a position of high principle or it can be a cloak in which to wrap the promulgation of one’s policy preferences under the guise of law. A nominee who has a track record of rejecting claims he or she finds politically congenial will — and should — have an easier time than one whose fidelity to the law is circumstantial. Moreover, insisting on constitutional rulings supported by the document’s text, history and structure need not mean insisting on cramped or anachronistic treatment of law that was written in general terms to remain relevant to a changing society.

Again all this gobbley-gook is just code for Abortion Rights. We do not want to hang onto settled law. Law that the majority of Americans feel is settled. No, we must not be stopped by “cramped or anachronistic” ideas. After all, we are a “changing society.” That may be true but I thought all societies valued human life. But I guess that can change as well.

Liberals and Democrats, having lost the election, cannot reasonably ask Mr. Bush to nominate a justice to suit their tastes.

Do you think?

But that doesn’t mean a full-fledged war is inevitable. Even in the current environment, there must be a potential nominee who will satisfy the president but offend a minimal number of his foes. The president would do great service if he could find such a person.

I bet if you looked back you would find editorials from the early to mid 1990’s that lectured the Republicans about how they were not in power and that they needed to defer to the President. After all, it is the Presidents choice and if you do not like it, tough, we have the votes. Here are the facts:

Like him or not, President Bush has won two national elections. The latest one by a majority of Americans. Republicans hold both houses of Congress with a large majority in the House and a slimmer one in the Senate. The majority of State Governors are Republicans. Even the State of Georgia has a Republican Governor for the first time in over 140 years. State legislatures are beginning to lean more and more Republican.

So why should the President be the one to defer to the losing side? If the Democrats lose elections they insist that you compromise and reach out to them. But if the Democrats win the elections, you must toe THEIR line. You must be the one to compromise.

I urge President Bush to nominate a solid conservative judge. Not a good friend or someone who is loyal, but a good solid conservative judge. Then fight the good fight. Let the Democrats show what they really are. You need to do this now. If you nominate a quasi-Conservative, then the Democrats may not bark and he/she will be confirmed. But when the next seat opens up (soon) the Democrats will block whoever you put forward. They will be able to claim that they let the first Justice go through, but this other one is too extreme. That way they can act like they are being helpful when in fact they are obstructionists.

President Bush, here is your ONE chance. Pick the best person first. Make the Democrats obstruct. Then your second one can be a little softer.

Oh yeah, ignore what the Washington Post wants you to do. If they are mad at you, then you must have done the right thing.