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Jewish World Review Sept. 7, 2005/ 3 Elul 5765

Cal Thomas

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Bush's Supreme opportunity

http://www.NewsAndOpinion.com | Dwight Eisenhower came to regret the judicial activism of the chief justice he nominated. Ike called his choice of liberal California Republican Earl Warren "the biggest damn fool mistake" he ever made.

Richard Nixon nominated six justices to the bench. Two of them, Clement Haynsworth and G. Harrold Carswell, were rejected by the Senate. Four —William Rehnquist, Warren Burger, Lewis Powell and Harry Blackmun —were confirmed.

While Blackmun, who authored Roe v. Wade, was in the activist mode of Earl Warren, Nixon's nomination of Rehnquist (and Ronald Reagan's elevation of him to become chief justice) was Nixon's greatest domestic legacy.

Rehnquist slowly, but eventually and effectively, moved the court not so much in his direction, but toward what the Founders had in mind when they wrote the Constitution.

He single-handedly anchored the conservative wing of the court until reinforcements arrived. He had one of those qualities rare in today's Washington: the ability to hold strong convictions while maintaining good relations with those who held different views. John Roberts, who clerked for Rehnquist, apparently shares his demeanor.

With Roberts' nomination to the court already enjoying the announced support of several Democrat Senators, it will be difficult for them to oppose him for chief justice.

The question now is: Should President Bush nominate an equally conservative person to the court to fill the remaining vacancy?

He should if he wishes to remain consistent to his often-proclaimed desire to have a court that makes decisions based on the Constitution and not the personal whims, prejudices and objectives of individual judges. No political doctrine has been stated and restated by President Bush as much as this one. To go against it now would be the political equivalent of the president denying his faith.

Bush gets it when it comes to ideology. Unlike his father who listened to top aides and gave the country the liberal disaster named David Souter, whom Senator Edward Kennedy now praises, Bush is not about to see his legacy tainted by someone who is a closet liberal.

The great temptation in Washington is to do things that please the social and journalistic elites. If you don't care about invitations to the "right" social events and you are unconcerned about whether those newspapers like you, then you can achieve true independence.

In a tortured editorial on Rehnquist, The New York Times exhibits an attitude that must resemble that of Satan when someone he is after gets away to the other side. The Times consoles itself by noting the battles Rehnquist lost, not those he won. It could only say that the "final word on his service will be history's, and it is likely to view him as hardly a great jurist, but one who loved the court and had a significant influence on it."

Rehnquist could have cared less what the Times thought during his life and the same could be said about the paper's prediction concerning his legacy. He cared about the Constitution and the Court. That is the model President Bush used in finding and selecting John Roberts, and it is the model he should use in his second selection.

The president should forget race, gender and all other meaningless considerations (gender considerations produced Sandra Day O'Connor, who turned out less than conservative when it mattered most). The president should, and I think will, nominate another justice with credentials at least as impeccable as John Roberts, whatever their background or personal status.

Liberal activist groups, which have so far failed to stop the Roberts momentum, will be taking the ideological equivalent of Viagra to whip themselves and their whacky followers into a state of frenzy over whomever Bush selects as his next nominee.

Watch for those rusty coat hangers to reappear in TV ads, suggesting the self-butchering of pregnant women who might be denied their "right" to abortions. Watch also for the left to invoke the image of blacks being denied the right to vote.

Bush's next nominee can distinguish himself, or herself, by overcoming these smears with dignity, intellect and a reminder that devotion to the Constitution, as written, is the best protection.

President Bush won the election. He gets to name judges who represent his judicial outlook. That's what President Clinton did. The Senate should confirm President Bush's nominees in the same timely manner.

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