'A Whiter Shade of Pale'

With the confirmation and swearing in of Chief Justice John Roberts on Thursday attention is now focused on who will fill the seat that's tentatively being vacated by the retiring Sandra Day O'Connor. O'Connor's place with the court has long been viewed as that of a 'moderate' and there's a major push in Washington for her to be replaced by a so called 'moderate'. Today's moderate is the liberal activist from 25 years ago.

President Bush now stands in a position not held by a Republican President in nearly three generations. Republican's hold the Senate and the White House at the time of a Supreme Court appointment for the first time since President Eisenhower. For me to say this is what conservatives fight for would be an understatement.

Let's go back to the 2000 Presidential election. One of candidate Bush's biggest applause lines on the campaign trail was in support of strong, Constitutionally based judges in the mold of Antonin Scalia and Clarence Thomas. Again, on the campaign trail in 2004 one of the most rousing moments came at the mention of what Bush, and indeed most Conservatives view as the activist role left wing judges have taken in the past 30 years. As liberalism has failed at the ballot box, liberal activists have increasingly sought redress in the judicial branch.

The most recent and most visible encroachment on personal liberty by the Supreme Court came with the June 23rd in the Kelo v. New London case. This decision now allows local municipalities and the federal government to seize or condemn land for private use and development. The Constitution of the United States allows for government seizure of land for public use (roads, bridges, etc) not public purpose. Which is essentially what the Court ruled in its 5-4 decision. Granted, to be fair, Justice O'Connor did descent in this case. That does not change the fact, in my opinion, that O'Connor did often tilt the court towards its more activist tendencies, during her tenure. See: http://www.issues2000.org/Sandra_Day_O_Connor.htm#Abortion

The vacancy of the O'Connor seat presents President Bush with a grand opportunity. He has a chance, with a selection of a strict Constitutionalist, to tilt the court ever so slightly back towards the right, which is why we have elections in this country. Whomever wins chooses the makeup of the court when there is a vacancy. Again, this is what it's all about.

In 1987, President Reagan attempted to remake the court in his own image with the selection of Robert Bork. Reagan had the misfortune of a) being a Republican President before the age of the internet and b) before the emergence of grass roots organizations specifically existing for just such an opportunity that now presents itself to Bush. Bork's defeat, during confirmation was a deep blow to the Conservative movement. Eventually Reagan was forced to settle for Anthony Kennedy who to this day is one of the most liberal members of the Court, consistantly siding against the Constitution and against liberty.

Luckily for President Bush, this isn't 1987 and he does have quite a calvary of support (internet, grass roots, etc) to throw behind any perspective nominee. With the nomination announcement expected early this week, all conservatives are expecting President Bush to make good on his promise to nominate someone in the mold of Scalia or Thomas. It remains to be seen whether Justice Roberts will prove to be such, however, chances are strong that Bush chose wisely.

In the past few days, leading up to the nomination announcement, the dialogue has escalated from whispers to demands that the nominee to fill O'Connor's seat be a "consensus candidate" to quote Senator Charles Schumer (D-NY) directly. Furthermore, there are outcries from liberal blogs and pundits that this nominee be a woman and or a minority. I think I have a way for President Bush to satisfy everyone involved here. Her name is Janice Rogers Brown:








Not an activist judge.








Brown is simply one of the brightest legal minds that I've seen. She definitely fits the criteria of a 'Scalia or Thomas' and she is an outspoken supporter of *complete liberty*.

See: http://www.constitution.org/col/jrb/00420_jrb_fedsoc.htm ("A Whiter Shade of Pale" speech by Janice Brown, April 20th 2000)

There will be hue and cry by all liberals and some weak-kneed conservatives if President Bush nominates JRB. But he only needs to remember that this is 2005 -- not 1987.