The Cat Is Out Of The Bag: Balance? What Balance?

As we begin this week, sure to be a long one, I’m reminded by my other half about the carping of the Democrats that the president should maintain the balance of the high court. The Democrats have all but given up the ghost in the Roberts fight (at last count in prospective votes, Roberts has 67 yeas, 15 nays, and 18 undecided) and this man will be the next chief justice. His vote is slated for Thursday, and no doubt exists that certain members of the party will stand up one last time and launch their last-ditch attack on Judge Roberts.

So, once that vote is done, and the Democrats are left by the wayside to lick their wounds, it will fall to the president to present his next nominee. It is rumored that he will make the call Friday, or early next week. And our regular readers have seen our short list of the ten best qualified jurists to take O’Connor’s seat. But, the Left is busying itself with a demand that the president "maintain the balance on the court."

Over at ConfirmThem, a post about the precedent I’m about to discuss had both sides arguing over this so-called "balance." Simply ut, there is no such thing as "balance" for the judiciary. Or, at least, there shouldn’t be. Judges are arbiters and interpreters of the law. Their personal ideologies and beliefs should never enter into a decision. They are irrelevant in the overall case, and if they can’t get past them, then a recusal is in order.

But they still speak of maintaining the current balance of the court. They want a moderate to be appointed so the ideology of Justice O’Connor is maintained on the court. If I may frank with our readers, I don’t want that ideology on the court. It is wrong. It is irresponsible. It is reckless. And as many people know, as Justice O’Connor grew on the court, her thinking was further befuddled. Be it a preoccupation with the failing health of her husband, or her own old age matters not. She was a moderate when Pres. Reagan appointed her, and she slipped further to the left as time marched on.

But when it came time for Pres. Clinton to make his two nominations to the Supreme Court, he chose two people that, I’m sure, he thought were qualified, based on his own ideas. There’s nothing wrong with this. This isn’t cronyism, as neither of them knew Pres. Clinton personally, except while being vetted by his people. He chose Justice Ginsburg and Justice Breyer. But did Pres. Clinton maintain the balance on the high court with these picks? Hardly.

Justice Ginsburg was nominated after the announcement that Justice Byron White was retiring. Justice White was one of the staunch constitutionalists that voted against Roe v. Wade. He was a conservative justice. His views were on the record during his confirmation process, and from his tenure on the bench. Justice Ginsburg was neither. Pres. Clinton’s nomination of then-Ms. Ginsburg was a precedent set that a "balance" was insignificant. I’m positive that had every justice retired during his tenure, we would have ended up with a mix of moderate and liberal activist jurists. He cared nothing for balance.

Justice Breyer, on the other hand, was chosen to replace the infamous Justice Harry Blackmun. For those that aren’t aware of this, Justice Blackmun wrote the decision in Roe. He cited everything the cat could possibly drag in except a solid, constitutional analysis of the argument in question. So, Justice Breyer’s nomination was a wash. That was maintained.

But Pres. Clinton didn’t do it when it came to replacing Justice White. We got Justice Ginsburg, instead, which shifted the court’s ideology—a concept that has no business on the court—further to the left. Now, the Democrats are demanding that Pres. Bush maintain the current balance. To that I say poppycock. Should Pres. Bush choose one of our ten, or find another judge that is close to them, then he is not changing the balance. He’s restoring the balance robbed by Pres. Clinton.

With such a closely divided court, what did Pres. Clinton do to preserve this suddenly precious balance? Did he replace Justice White with another conservative? Did he choose someone that shared Justice White’s view regarding abortion, that there is no constitutional protection for abortion? No, he chose the former general counsel of the American Civil Liberties Union, a leading liberal law scholar whose special interest was women's rights: Ruth Bader Ginsburg. I failed to hear anyone questioning where the balance was maintained then as people knew that Justice White was not even close to then-Ms. Ginsburg.

The question remains: Why is it no so important to maintain the balance when the precedent was set by Pres. Clinton that no such balance need be kept? The answer is simple.

With Judge Roberts’ nomination coming to a close, the Left has seen the writing on the wall. Sen. Kennedy, I’m sure, was hoping to be able to "bork" Judge Roberts, and it didn’t work. Sen. Biden tried to smear the man, and make him something that he wasn’t. Sen. Leahy went after him. Sen. Feinsten went after him. Even Sen. Specter lowered the boom on the man. They couldn’t touch him. By the end of the hearing, Sen. Biden was so befuddled, all he could was laugh at how Judge Roberts had "kabuki" danced his way through the process.

If the Democrats thought Judge Roberts was a softball, I would hate to see how the president plays hardball. But one thing is for sure, the president must nominate not only a well-qualified jurist, but also one who believes in interpreting the Constitution based on what it means, based on what it says, and not by what they believe it should say.

Publius II