The Black Republican

Sandra Day O'Connor's announcement 10 days ago that she will retire offers an opportunity for President Bush to bring the country together; to unite rather than divide, and to allow the Senate to move on to addressing the bread-and-butter issues facing average Americans.

Notice how right out of the gate Schumer tries to define the entire issue by putting the all the responsibility to "unite rather than divide" the country solely on the President's shoulders while at the same time attempting to paint himself and his fellow Senators as the good guys with his 'We're only trying to address the bread-and-butter issues facing average Americans' rhetoric.

His selection will have a lot to do with determining his legacy, and I hope that he will seize the day.

It is true that this selection will indeed have a lot to do with determining the President's legacy, but it is a bald face lie Chuckie-boy that you hope he seizes the day - the truth is that you're hoping desperately that he does just the opposite and caves into you and your fellow Senate liberals.

Since O'Connor's announcement, two questions have been swirling around the Capitol and the country. What kind of person should replace her? And also, what kind of process should lead to her replacement? Both the process and the pick should reflect the American people's ideals of reasonableness, moderation and fair play.

Well Chuckles, I guess two outa three ain't bad. I can buy reasonableness and fair play because both of these concepts can be applied to the Constitution and the Law without prejudice, but moderation? No way! In order to be moderate you must consider the political aspects of an issue and, in an ideal world, there should be no political considerations on the Court, only Constitutional ones.

First, before nominating a replacement, the President should consult meaningfully with senators of both parties to arrive at a consensus nominee, not only because the Constitution contemplates it, but because the country needs and deserves it.

That "because the country needs and deserves it" is a bit melodramatic, but I have no problem with the President consulting with Senators - as a courtesy, and because it is actually part of his Constitutional duty to seek "advice" from the Senate - but not to obtain a consensus. In either case (and thank God), there's nothing in the Constitution requiring him to heed the advice of the Senate. ;-)

After two exceedingly divisive presidential elections and a season of bitter partisanship, Americans want the President and the Senate to unite rather than divide the nation.

I agree Senator, and the President has gone above and beyond the call and moved well past halfway toward that very goal. Perhaps you haven't noticed Senator, but that road to unite the Nation runs both ways, and the sooner you and your Senate comrades start moving towards the President instead of running away screaming, the sooner we can achieve that goal.

The best way to do that is for the President and senators from both parties to get together. I have proposed a summit, at Camp David or even over dinner, where the parties would roll up their sleeves, loosen their ties and have a serious discussion about potential nominees.

It seems the President liked your idea Senator. How was breakfast the other day? Oh, that's right... you weren't one of the invited. Well, at least you can take comfort in the fact that he followed your advice.

Former President Bill Clinton consulted regularly with Sen. Orrin Hatch (R-Utah), the lead Republican on the Judiciary Committee at the time, and that led to two smooth and quick confirmations of consensus candidates - Ruth Bader Ginsburg and Stephen Breyer.

That's because Senator Hatch actually understood and followed his role as described in the Constitution, and you are right in praising him for doing so. He advised the President, held Judiciary committee hearings, and then moved the nominees names out for a floor vote. And in case you missed it, this is what Senator Hatch had to say regarding his consultations with President Clinton: "In fact, at the same time I was giving President Clinton the input he sought, I also said on the Senate floor: 'The President won the election. He ought to have the right to appoint the judges he wants to.' Some who today demand consultation appear to have rejected that notion altogether." Since you hold Senator Hatch up as an example of how things should be done, I hope we'll see you and the other Senate Democrats fulfilling your duties in the same manner.

At the hearing itself, senators should ask - and the nominee should answer - questions about the candidate's views about constitutional interpretation, about decided cases and about what rights he or she believes are protected in the Constitution.

No! At the hearing a nominee should answer questions about their own judicial temperament and how they would apply the Constitution in generic, non-specific, hypothetical circumstances. Answering anything about current circumstances, or even about decided cases that could have current applications could be interpreted as pre-judging a case, and that is strictly forbidden by judicial ethical cannons. The rights that are protected in the Constitution are spelled out quite clearly "in" the Constitution, so there is no need to answer questions about which rights he or she believes are protected.

The Supreme Court is the ultimate guardian of our most precious rights, and appointments to that court are for a lifetime. So long as the nominee is not asked to prejudge a specific case, it is incumbent on us to ask about a nominee's views of the First Amendment, civil rights, environmental rights, religious liberty, the rights of working people and other fundamental issues.

Senator, if by "views" you mean opinions, then again NO! The only "views" any judicial nominee should have should be the ones seen through Constitutional glasses. Personal opinions of any nominee, when it comes to matters of law, should be absolutely irrelevant. What is relevant is what the First Amendment and the entire Constitution actually spells out - not what one man or woman wants it to say. Civil rights, religious liberty, the rights of working people and other fundamental issues are all addressed in the Constitution - and where they are not then the States (read "the People") are free to decide those matters for themselves. (see the the Tenth Amendment to the Constitution [in the Bill of Rights])

Otherwise, how are the American people to know whether the nominee can be trusted to protect those rights?

The Declaration of Independence, the bedrock on which the granite foundation of the Constitution was laid, states "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Those are monumentally lofty goals for any government to try to achieve, in any era. The problem has always been that the people of this country, too often aided by the very people you say we should trust "to protect those rights," have often tried to ignore the portions of the Constitution they couldn't seem to (or didn't want to) live up to (Plessy v Ferguson and Dread Scott). Since it seems we the American people can trust the Constitution to protect our rights more than we can trust ourselves, shouldn't we all hope for a nominee who looks first to the Constitution for guidance, and not to their own "views" or "beliefs"?

Now, what kind of person should the nominee be? Because Justice O'Connor was the pivotal swing vote on so many vital issues, the President should take care to preserve balance on the court.

I thought that justice and the law was supposed to be blind to everything but the facts. Why is there a need to preserve balance on a court that is supposed to be unbiased? And, most tellingly, why do you consider Justice O'Connor to have been the pivotal swing vote? Is it perhaps that you see the court not as body dedicated to blind application of the law but as an ally in a strategic political calculation? You know, I really do think a US Senator should have a better understanding of the way the different branches of the government work.

I have often said that a Supreme Court with one William Brennan and one Antonin Scalia would be an interesting and vibrant court. But a Supreme Court with five of either would not.

I couldn't disagree more. IMHO, The Supreme Court should be a stoic and predictable court (predictable at least to anyone who bothers to read the Constitution). A court with one William Brennan and one Antonin Scalia would be rooted in the Constitution on the Scalia side (as it should be) and tilt down and away to the left away from the Constitution on the Brennan side. Scalia sees the Constitution as it is written and interprets laws accordingly. Brennan had "views" and "beliefs" and "goals" and distorted the principles of the Constitution to advance them.

In thinking about what kind of person would make a good replacement, history provides an excellent precedent. Twenty-four years ago, when Former President Ronald Reagan faced his first Supreme Court vacancy, after a divisive election, he picked someone who was thoughtful, mainstream and pragmatic. He picked a consensus nominee - Sandra Day O'Connor.

Oops! You're slipping Chuckie - this time you're only one for three. Thoughtful is good - though what qualified person would not be at least thoughtful - but you make the same mistake you did a while back with "mainstream and pragmatic." Those are political consideration Chuckles, and have no place on a court, especially not the Supreme Court. And for the last time upChuck, if the framers of the Constitution had intended Supreme Court Justices to be chosen by consensus, they would have spelled that out. I'm beginning to think you haven't really read the Constitution Senator.

She was confirmed 99 to 0. President Bush should take a page from Reagan's book as he faces his first Supreme Court pick, also after a divisive election. He should select a mainstream, thoughtful pragmatist in the mold of O'Connor.

The only reason you want another Justice like Sandra Day O'Connor is so that you and your cronies can continue to use the activist half of the court to advance the liberal agenda that you constantly fail to advance through the ballot box. I really do think you should read that Constitution thing Senator. You might just learn a thing or two.