Our Boy Does Disappoint

President Bush's decision not to nominate a true conservative should finally prove to everyone that he is not what he says he issue refuses to close the borders. He refuses to fight an all out war in Iraq. He refuses to veto any spending bill. He refuses to fully support Israel. He refuses to cut foreign aid. And his refusal to nominate Janice Rogers Brown is just plain wrong. The article below is awesome.
One-Sided 'Balance' If Ruth Bader Ginsburg could replace Byron White, Janice Rogers Brown can replace Sandra Day O'Connor. BY MANUEL MIRANDA Wednesday, September 28, 2005 12:01 a.m. EDT
As soon as Justice Sandra Day O'Connor announced her retirement in June, Democrats called on the president to name a moderate "consensus" replacement that would preserve the balance of the court. Now they are at it again.
By her voting record, Justice O'Connor was toe to toe with the late Chief Justice William Rehnquist 80% of the time, but where she parted with him, on key social issues such as Roe v Wade, is exactly where politically-minded Americans draw the battle lines. So naturally she has become the judicious voice of moderation for liberals. The president probably should have left John Roberts as Justice O'Connor's replacement. Unfortunately, we now have to hear Democrats and Judiciary Committee chairman Arlen Specter make calls for balance.
But in the second round of replacing Justice O'Connor, liberals have adapted and added a second tactic. As I wrote in a previous column, Democrats, having neither a majority nor a viable filibuster threat, are launching a targeted pre-emptive strike by naming the potential nominees they will fight against. Coincidentally these are the only potential nominees that conservatives will likely lift a finger to fight for.
The left's main target is the jurist liberals know is the president's ultimate Katrina exit strategy, Judge Janice Rogers Brown. Although at her hearing she was a model of grace and intellect and she wrote more majority opinions than any of her colleagues on the California Supreme Court, liberals paint Brown as "unrelenting" and a "lightning rod." Her critics say that she has not been on the federal appellate court very long, even though she has now been on as long as David Souter had been when he was elevated, and she would have had more than two years' experience had Democrats not filibustered her nomination.
Last week, even the reputedly honest Russ Feingold of Wisconsin could not resist taking a gratuitous swipe at Judge Brown while announcing his support for Judge Roberts. Mr. Feingold suggested that Judge Brown would bring back the Lochner era. That was a reference to a 1905 Supreme Court decision in which the court replaced the economic policy judgment of a legislature with its own. It was like saying no more ice cream to a room full of children.
In truth, Judge Brown has written disapprovingly of Lochner: "The name has come to symbolize judicial usurpation of power . . . using the due process clause as though it provided a blank check to alter the meaning of the Constitution as written." Despite this, liberals insist that Judge Brown favors the Lochner decision because she criticized a small part of Justice Oliver Wendell Holmes's dissent. Holmes said the U.S. Constitution did not reflect an economic structure, such as respect for private property. Judge Brown thinks that it does.


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.
Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears Monday, Wednesday and Friday. http://www.opinionjournal.com/nextjustice/?id=110007324