The Right Nominee

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Monday, July 11, 2005

IN THE PAST, presidents have nominated justices to the Supreme Court who have been received with a national outpouring of acclaim. American society is probably too politically riven for President Bush to manage such a triumph today. Still, broad-based support should remain Mr. Bush's critical goal as he contemplates the replacement of Justice Sandra Day O'Connor. There is an enormous difference between a judicial nominee confirmed on a party-line vote and one who receives strong bipartisan backing. This requires of Democrats a fair-minded assessment of the president's choice. Yet it also requires that Mr. Bush search for a nominee who meets the standards of those acclaimed selections.

The first is that any nominee should have professional qualifications of the highest caliber. This point would be too obvious to mention, except that presidents have not always paid it much heed. Particularly in the current political environment, it is essential that there be no suspicions that the nominee was named because of narrow ideological considerations or political loyalty. Mr. Bush would do the country, and himself, a great favor if he can convincingly state that his nominee is among the small group of American lawyers most qualified to serve on the Supreme Court.

Another critical factor is temperament. By this we do not mean being a nice person or being genial in the courtroom; great justices are sometimes neither. The world of conservative jurisprudence is today split between judges content to decide specific cases and those -- such as Justice Antonin Scalia -- who insist on using the bench as a kind of pulpit for a larger war over American law and society. A nominee who strikes such a pose not only invites opposition from those who disagree with his or her stances but displays precisely what the court does not need: a lack of modesty and a grandiose conception of the judicial function. Justices only rarely get to be heroes and should not imagine themselves as such.

A related point is that a nominee who strongly believes in the stability of precedent -- the legal principle of stare decisis -- is far more likely to garner broad support than a nominee who generally regards past decisions as ripe for overturning. Justice Clarence Thomas is more radical than Justice Scalia not because he has a more radical view of how cases should be decided in the first instance but because of his willingness to overturn age-old precedents. It is far easier to support a nominee whose approach to cases is not one's own if that nominee treats decisions of past eras with respect and deference.

Mr. Bush has made clear that he is looking for a nominee who will strictly interpret the Constitution and not be looking to discover novel rights within it. This position will have greater integrity if he nominates someone who applies such a skeptical eye across the board; fidelity to the Constitution as the Framers wrote it can be a position of high principle or it can be a cloak in which to wrap the promulgation of one's policy preferences under the guise of law. A nominee who has a track record of rejecting claims he or she finds politically congenial will -- and should -- have an easier time than one whose fidelity to the law is circumstantial. Moreover, insisting on constitutional rulings supported by the document's text, history and structure need not mean insisting on cramped or anachronistic treatment of law that was written in general terms to remain relevant to a changing society.

Liberals and Democrats, having lost the election, cannot reasonably ask Mr. Bush to nominate a justice to suit their tastes. But that doesn't mean a full-fledged war is inevitable. Even in the current environment, there must be a potential nominee who will satisfy the president but offend a minimal number of his foes. The president would do great service if he could find such a person.


© 2005 The Washington Post Company

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