Bush Gives Clue To SCOTUS Nominee
By Justin Gardner | Related entries in Supreme CourtFrom the AP:
In his weekly radio address, Bush said his eventual nominee will be a “fair-minded individual who represents the mainstream of American law and American values.”
Some are thinking this points directly to Gonzales. That makes logical sense to me because while Gonzales is more a centrist than the other nominees, he has the pall of the torture scandal looming over his head. In other words, Bush sets up a challenge for the Dems. Let a guy pass who shares some of your values or continue to fight the spectre of Abu Ghraib.
Having said that, I ask you all: could a nominee who is more moderate than the other choices actually be a more divisive pick? And please don’t tell me it’s JUST the Dems’ responsibility to find common ground. Bush is well aware of what kind of baggage Gonzales carries with him.
The next week is going to be interesting to say the least.
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July 16th, 2005 at 3:50 pm
I don’t understand why people feel the need to speculate (but it seems very many do.) The nominee will be who the President nominates when he nominates him.
You would think, after the ridiculous and overhyped speculation about Rehnquist’s impending retirement and the subsequent refutation, speculation would cease, but I guess that’s not to be.
July 17th, 2005 at 12:43 am
I think this is just talk. It doesn’t matter who he nominates, he’s going to call him fair-minded and from the mainstream etc…. Its just him framing the debate, or trying to. I don’t see how there’s anyway that he can get away with not nominating someone extrememy conservative. The religious right will raise hell if he doesn’t.
Im not convinced that Gonzales is all that moderate anyhow. People keep pointing to a couple rulings he made on abortion. But thats just one issue, and that doesn’t tell you anything about how he would vote if he were on the supreme court. Thats just him applying the law.
July 17th, 2005 at 9:05 am
“Its just him framing the debate”
Hmmm… I don’t believe it was Bush who first used the term “mainstream” with respect to SCoTUS nominations. In fact, don’t believe he’s said much at all about the issue until lately - while the moonbats and even the more level-headed pols and pundits have been second-guessing how the process will/should go for weeks (months?), with many demands for “mainstream” nominees long before Bush said anything that might be construed as “framing the debate”.
I’m curious. What does “mainstream” typically imply in general (political) context? Should it reflect the majority mindset? The loudest voices? The highest-density population centers? And what does it imply, specifically with regard to a SCoTUS nominee? How, if at all, are the two different? And why does this mysterious quality seem to take precedence (for some) over the nominee’s ability to assess and judge cases in accordance with the letter of the Constitution, as opposed to in accordance with the Bible or some nebulous, “progressive” rulebook that treats the Constitution as a “living” document with rights and state authority hidden in the margins and no clear admendment process?
My personal sense is that the term “mainstream” is absolutely no different from the term “assault weapon” in its value with respect to making law. The beauty - and danger - of this term is that it tends to mean whatever the speaker or listener interprets it to mean (this is no accident, IMHO). “Mainstream” can never be clearly, universally defined in terms as specific as the Constitution and is why, I believe, it simultaneously appeals to the moral relativist mindset AND sets off alarm bells among those who recognize a *written* Constitution as one of the greatest social achievements in history.
My sense is also that those demanding a “mainstream” nominee are clutching at the last bastion of minority influence over the law. That minority is reflected in the current political composition of the Executive and Legislative branches of the federal government, and even moresoe in that of the present Governorships of the States, and perhaps more importantly, the *trend* of the last decade’s elections. This is also no accident, and in its light, it’s pretty clear what the real mainstream ideals in the U.S. are today, at least as expressed by the Electorate.
Relatively recently (at least to those of us born before 1960 ;-) we discovered, as the (actual) religious right of Jerry Falwell and Pat Robertson, and bigots like George Wallace marginalized themselves into political insignificance, that mainstream ideals are decidedly NOT the 1950’s views that listed homosexuality in the DSM as an emotional disorder, hinted at Jews as the source of the world’s ills and relegated blacks to the back of the bus. Today we’re learning that those ideals are ALSO NOT the divisive rhetoric and anti-religious moral relativism that has been hammered ad nauseam by the shrill fringe of the left.
Mainstream ideals are somewhere in between, and I believe that this centrist, middle ground can only be preserved through an originalist interpretation of the Constitution. Why? Because the Legislative body of Congress and the Constitutional Amendment process both exist in our system of government for a reason - to produce law that reflects the will of the people and to prevent distortion of that law - in *either* ideological direction - due to the whims of an administration or even an era. And the self-correcting history of the Constitutional Amendment process bears this out.
For the reasons cited above, I hope and believe that we’ll see some originalist judges nominated for the court. And from where I sit, such nominees will be mainstream in the only valid context of the term.
July 17th, 2005 at 5:29 pm
he has the pall of the torture scandal looming over his head.
I think it’s pretty ironic that some on the left have been systemically vilifying Gonzales for months, when it turns out that he is their only chance at getting a pro-choice Supreme. But they needn’t worry - Bush won’t decline to nominate Gonzales for fear of their “pro-torture” agitprop. But neither will he nominate Gonzales just to appease them over Abu Ghraib. Especially if he listens to Karl Rove, who is pleased to have Democrats go on and on (and on and on and on!) about the plight of terrorist suspects.
What I find strange about this pending fight - and I have not noticed any commentary on this - is that Harry Reid led off the speculation by suggesting that Bush nominate a Republican senator. Reid named four Republican senators, all of whom are 100% pro-life. Was this a signal to some people to warn them to stay out of this one?
July 18th, 2005 at 5:05 pm
What’s the old saying?: I may not know what “mainstream” is, but I know what I like!
Mainstream is an old “eye of the beholder” parlor trick that let’s Bush off the hook whenever one of those pesky reporters keeps asking him about “litmus tests”. Which, BTW, he does have a litmus test; we all do - his just means “strict constructionist”.
Either way, we shouldn’t make too much of what Bush says to reporters. He certainly doesn’t. One thing I will give to Shrubya, whoever he picks, both sides will go “huh?”
Speaking of mean-nothing phrases: could Goy or someone else please explain to me what “originalist” means if it doesn’t mean turning the clock back to “simpler” times (50s, 30s, 10s, 1800s choose your favorite good ol’ days)? Does it mean original intent, which basically involves an even greater amount of founder mind-reading as those of us who subscibe to the “living document” theory or something else?
July 18th, 2005 at 8:22 pm
JT - the Constitution is, by it’s construction, explicitly NOT a living document that can be reinterpreted based on pervading conventional wisdom or any other sort of evolution of public opinion. If it were such a thing, there would be absolutely no need for the Amendment Process that is an integral part of it, since judges could reinterpret to their heart’s content in any direction the political winds blew them (ahem).
The Amendment Process was intended to deal with the “changing times” that the Founders knew they could not foresee. But the process is constructed in such a way as to avoid abrupt shifts in the meaning of the law, the nature of rights and the powers of the Federal Government - that’s why it requires the extreme level of agreement that it does. Even with that, we’ve seen amendments passed and then un-passed (Prohibition).
One doesn’t need to read anyone’s mind in order to determine the original intent of the Constitution. We have an abundance of literature written by the Founders (e.g., Federalist Papers, Jefferson’s writings, etc.), as well as our historical understanding of English Common Law. These are the only contextual references needed to further validate the already fairly clear language of the Constitution.
I don’t think many people understand this (thank you, Public Education) and it is easy to see why someone would misinterpret a term like “originalist” to mean “turning back the clock”. It does not mean changing the laws back to what they were at some point in the past - it simply means that neither rights nor federal authority can be second-guessed into the Constitution as though they were written in the margins or between the lines, just to “keep up with the times”.
The bottom line, from an “originalist” standpoint is this, IMHO: if you want to create a new right that’s not explicitly listed in the Bill of Rights - like a “right” to an abortion or a “right” to a job or medical insurance - then pass a Constitutional Amendment and everything will be fine. Likewise, if you want to create a new federal authority - like the power to take private property and turn it over to a developer to ‘increase tax revenue’ or the power to ban handguns - then pass a Constitutional Amendment. That’s what they’re there for.
August 6th, 2006 at 11:08 am
Good job.