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Justice for the Next Justice

By John Cornyn
Saturday, July 2, 2005

This week marks a historic occasion, not only for the U.S. Supreme Court, but for America -- the retirement announcement of our nation's first female Supreme Court justice. The process in the U.S. Senate for considering her successor should reflect the best of the American judiciary -- not the worst of American politics.

Justice O'Connor has provided a voice of judicial restraint on a number of important issues on which the court was closely divided. Throughout her 24 years on the nation's highest court, Sandra Day O'Connor worked to restore common sense to our criminal justice system and foster due regard for the powers reserved to the states under the Constitution. Thanks to her, victims of crime are more likely to receive justice and inner-city children are no longer constitutionally barred from access to school choice programs. And although I have not always agreed with her rulings, I have always felt a deep and abiding respect for her commitment to public service and reverence for the law.

The announcement of Justice O'Connor's retirement has now set a familiar process in motion. Soon the president will nominate, and the Senate will have the responsibility to consider, an individual to serve a lifetime appointment to the Supreme Court. As a senator, I must decide whether to vote to confirm or reject this nomination. This is a responsibility not to be taken lightly.

The president has the sole responsibility to pick his nominee. It is crucial that he do so with an eye toward character and temperament. The nominee must be intelligent and wise, thoughtful and careful, and always fair-minded and impartial. The nominee must have good moral character and demonstrated commitment to public service and the common good. And he or she must be open-minded and willing to consider all arguments before the court.

That is why, when evaluating the nominee, I will not be asking for commitments as to how he or she will rule on cases involving such contentious issues as abortion, affirmative action, same-sex marriage, the war on terrorism or any other specific issue on which the nominee might eventually rule.

To ask a judicial nominee how he or she will rule on future cases is to force the nominee to prejudge these cases. Imagine going before a judge whose mind was already made up concerning your case. Imagine a judge who had promised the president or some senator that he would rule against you -- no matter the merits of the case. That would not be a judicial process; it would be a political process.

It's crucial that judges approach every case free from political commitments. They must be free to disappoint their supporters and surprise their opponents and critics. Judges must be free to do their jobs -- to listen to the facts, to carefully divine the law and to be faithful to the Constitution.

As soon as the president announces his nominee, media reports and interest groups will probably attempt to demonize or paint the nominee as a right-wing extremist. Some Senate Democrats -- who often insist on asking nominees to prejudge cases and issues -- will subject the nominee to controversial questioning during the hearing process. The American people should recognize such questions for what they are: an attempt to politicize the process and badger the nominee to reveal personal feelings about any given issue. This is unfair to the nominee and the American people, and grossly distorts the Senate's role of providing advice and consent.

Before her service on the federal bench, Ruth Bader Ginsburg -- a distinguished jurist and liberal favorite -- served as general counsel of the American Civil Liberties Union, a liberal organization that has championed the abolition of traditional marriage laws. Before becoming a judge, Ginsburg expressed her belief that traditional marriage laws are unconstitutional but that prostitution is a constitutional right. She also wrote that the Boy Scouts and Girl Scouts are discriminatory institutions, and that courts must require the use of taxpayer funds to pay for abortions -- hardly views Americans would consider mainstream. Yet Senate Republicans and Democrats alike set aside such concerns and approved her nomination.

By contrast, we have seen during the past four years a partisan minority obstruct this president's judicial nominees -- who hold views shared by millions of Americans and enjoy bipartisan majority support in the Senate -- suffer vicious attacks and unprecedented obstruction at the behest of liberal interest groups.

Our role as senators is to ensure that the nominee is qualified and has the intelligence, character, and judicial temperament to perform the job, to guarantee that all senators have an opportunity to evaluate the nominee, to allow as much debate as is necessary to fully discuss the nomination, and then to come to a vote. Yet there are some who argue that the Senate can refuse to vote altogether, and that the Supreme Court should be forced to operate without a ninth justice.

While I am confident that the nominee to replace Justice O'Connor will be an able jurist, I am less confident in the treatment he or she will receive from the president's opponents.

The writer is a Republican senator from Texas.

© 2005 The Washington Post Company