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Democrats, Try Not to Be So Rude


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November 1, 2005

Democrats, Try Not to Be So Rude This Time Around

By Mark Davis

Please help me remember. When President Bill Clinton offered up Ruth Bader Ginsburg in 1993 and Stephen Breyer the year after, was there a conniption fit from conservatives yelping as though the republic were about to come off its hinges?

I don't remember such an event. I remember shrugging, anticipating associate justices who would skew the way a Democrat president would like and anticipating a chance to achieve some balance in a future Republican presidency.

Meanwhile, Justices Ginsburg and Breyer have been reliable torchbearers for the army of Americans – mostly liberals – who regard the Constitution as perpetually subject to the evolving sensibilities of the day.

Now, with a Republican president, comes the expectation that his selections will represent the opposing view, usually held by conservatives, that the Constitution is to be carefully regarded for clues as to its authors' intent.

But the decorum that gave presidents deference in such choices has vanished. Or at least it has for Republican presidents.

Justice Ginsburg was confirmed by a Senate vote of 96 to 3, Justice Breyer by 87 to 9. In other words, the vast majority of Republicans observed a president's right to his nominations, absent enormous questions of qualifications or personal misdeed.

Using that same standard, new Chief Justice John Roberts should have been able to expect a similar slam-dunk as the first appointee of President George W. Bush.

Welcome to the new era, where half of Senate Democrats opposed him for nothing more than the stigma of appointment at the hands of a president they loathe.

There was no question as to Judge Roberts' qualifications or personal qualities. The 22 "no" votes were cast purely because the naysaying senators disagreed with the thoughts in his head.

Surely those 22 can't show their faces in their home states if they vote yes on the latest nominee, Judge Samuel Alito. He arrives with a track record of constitutional constructionism that strikes terror into the hearts of Democrats who have long counted on the courts to bring about what the party could not achieve legislatively, from universal abortion rights to constraints on the death penalty.

This is exactly the kind of pick Mr. Bush should have offered up the first time. It is unfortunate that millions of his supporters who expected better did not get it, and it is unfortunate that Harriet Miers faces a stigma of failure when it is not her fault that she is merely one of the 99 percent of lawyers who are not great picks for the highest court in the land.

But that is now nearly forgotten, and all is surely forgiven in the ranks of the president's supporters, where smiles and optimism abound.

In dark contrast, witness the whining objections of key Democrats who do not have the guts to afford Mr. Bush the decency shown to Mr. Clinton and his nominees.

Their knee-jerk analysis that Judge Alito is a bone thrown to the right wing is as baseless as it is hypocritical. Amid catcalls of "litmus tests," Democrat senators will pillory Mr. Bush for seeking to gun down Roe vs. Wade, when they all know that if they were president they would never appoint a justice who did not guarantee to uphold it.

But even more craven will be the assaults on Judge Alito's character and the misrepresentation of his record. He will be called radical if not outright racist and misogynistic, and his temperament will be attacked as archaic and insensitive.

Mr. Bush's motivations will be similarly misstated, and an attempt will be made to revise history. It is vital to thwart these shallow efforts, so that we can recall what this chapter has really been about.

The complete lack of a track record sank a nominee who was praiseworthy in many ways, just not the ways relevant to a lifetime Supreme Court appointment.

Bush supporters demanded excellence, and the White House listened. Judge Alito's love for original intent is no more shocking than Justices Ginsburg's and Breyer's rejections of it.

I would hope for hearings that reveal the kind of bipartisan courtesy shown to Mr. Clinton's nominees. My expectation of that is precisely zero.


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The problem the Dem leaders have and continue to have is that they mistakently think that THEY speak for the average American. And because of this misconception, they think that by throwing out such vitriolic comments and making claims about this nominee or that move from the White House as being 'extremist' or 'far right wing', that the majority of the people ( who have continued to vote Republian) will somehow agree with them.

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