It’s Spring Training for High Court Fights

Spring training is just starting for major league baseball, but it began weeks ago for liberals who fought bitterly against John Ashcroft’s nomination for attorney general.

Democrats know that the time and resources they devoted to painting Ashcroft as an “extremist” and a “pay-off to the far right” was good conditioning, a warm-up for the big game: Supreme Court confirmation battles that promise to be Washington’s summertime version of Survivor III. What better way for Democratic leaders to rally a frustrated base than an aggressive campaign over who will be the next Supreme Court nominee? The unmistakable message flashing on the scoreboard to President Bush: Just try to nominate someone like Robert Bork again. Go ahead, make our day.

As much as they want a reliable conservative on the court, many Republicans are concerned. They know Democrats desperately want evidence to show that Bush’s compassionate conservative stuff is bunk, that he’s just another hardened right-winger in bipartisan disguise.

But nominating someone of Bork’s conservative judicial philosophy doesn’t consign Bush to the same strategy used in Bork’s 1987 confirmation hearings. Imagine if Bork’s PR had been as good as Oliver North’s during the Iran-Contra hearings. Regardless of the subsequent fall-out from North’s testimony, during the hearings he seemed to be a dedicated public servant ruthlessly victimized by out-of-touch senators. Bork, responding to questions from Ted Kennedy and others at his confirmation hearings, appeared (understandably) irritated. In turn, to liberals he seemed scary for questioning the court’s decision to find a “privacy right” in the Constitution.

Many predict that Bush will seek to avoid a Supreme Court blow-up by choosing a nominee who will be a “must confirm” for the Senate. This would include naming the first Latino to the court--perhaps White House Counsel Alberto Gonzales--or a former Senate colleague with friends in both parties--like John Danforth.

Yet the “politically correct” path might be the most dangerous route for Bush, let alone for the court, which now has only a slight conservative majority. Bush’s base is watching. One reason that conservatives coalesced around Bush was their belief that he would stand firm on judges. So Bush ought to follow some simple guidelines as he walks the minefield of Supreme Court appointments.

* Be realistic. Democrats are going to batter any Bush nominee--unless, of course, he or she is adamantly pro-abortion. So Bush might as well put forth someone his legal team knows will be a solid vote against the type of judicial activism that turns justices into legislators.

* Don’t fall into the compromise trap. Democrats will put enormous pressure on Bush to nominate a “mainstream” (read: liberal) person to the court. Editorial writers will say that this is his opportunity to be a consensus-builder. But the Supreme Court isn’t a place for reaching out; it’s where the rule of law should be scrupulously followed and interpreted to arrive at the right answer.

* Play to win. Enough of the perpetual apologizing by nominees for past statements and actions that liberals don’t like. A Supreme Court nominee should appear strong and confident--though not cocky or cold--during his or her testimony. A nominee should be thoughtful, human and noncommittal when pressed on hypothetical cases. When a nominee is accused of holding “extremist” views, Bush surrogates should hit the airwaves, turning the tables on the Democratic senators who refuse to curb partial-birth abortions despite the fact that 80% of Americans want to ban the practice. Who’s extremist now?

* No stealth candidates. When Bush’s father selected David Souter, many thought the move was exceedingly clever. That he appeared to be a tabula rasa on some of the thorniest judicial issues of our times helped him sail through his confirmation. The liberal flip-flops by Souter that followed would be unthinkable by well-tested candidates such as federal appeals court Judges Michael Luttig and J. Harvie Wilkinson (both on the 4th Circuit), Edith Jones and Emilio M. Garza (5th Circuit) or Samuel Alito (3rd Circuit). * Nominate the toughest to confirm first. Republicans control the Senate and Bush is enjoying a mini-honeymoon with the press and Democrats. Minority nominees who share Bush’s conservative judicial philosophy will be tough for Democrats to defeat even if they regain a Senate majority in 2002. Republicans still wince when they think of the lost opportunity when President Reagan chose Sandra Day O’Connor in 1983, when Republicans controlled the Senate. If Bork had been named then rather than in 1987 during the Iran-Contra mess and when Democrats controlled the Senate, he would be a Supreme Court justice today.

Bush has shown impressive resolve in pushing his tax-cut package and a missile defense system. If he can use that same moxie in his Supreme Court nominations, he’ll continue to surprise his critics, who are used to presidents who back-pedal away from principles when their popularity is at stake.