Back To The Drawing Board

Rumors circulating around Washington, DC are that the president will be choosing a new nominee to replace Harriet Miers within the next 24 to 48 hours. I’m not one to deal in Washington rumors, but it’s a distinct possibility. I’d like to reemphasize this site’s short list; a list the president should take a close look at.

J. Michael Luttig
Priscilla Owen
Janice Rogers Brown
Emilio Garza
Samuel Alito
Edith Jones
Alice Batchelder
Miguel Estrada
Edith Clement
William Pryor

I am aware that the original list included Mike McConnell, and had left Judge Pryor off the list. I spoke with Thomas earlier tonight, and we agree. McConnell is not one we would wish to see on the court. Mr. McConnell believes in substantive due process (SDP), which was one of the underlying factors in Roe. Below is a citation from Pres. Lincoln in 1858 where he explains how the opposite idea embraced by the court today is incorrect. Both Justices Scalia and Thomas agree with Pres. Lincoln, and chastise the court for acting opposite what is a well-understood concept. The bolded section of the quote was actually said by Pres. Lincoln. The remainder were his notes on the subject from his debate against Douglas.

The Constitution itself impliedly admits that a person may be deprived of property by "due process of law," and the Republicans hold that if there be a law of Congress or territorial legislature telling the slaveholder in advance that he shall not bring his slave into the Territory upon pain of forfeiture, and he still will bring him he will be deprived of his property in such slave by "due process of law." And the same would be true in the case of taking a slave into a State against a State constitution or law prohibiting slavery.

This also applies to life and liberty, which are the other two items that can be taken under "due process of law." Mr. McConnell supports the idea the court embraces today. Likewise, his views regarding the First Amendment seem to collide clash with Justice Scalia’s textualist view. McConnell disagreed with Scalia’s view in the case of Employment Division of Oregon v. Smith. In that decision, Scalia rightly applied drug laws to a sect of people who were using peyote. In Smith, Scalia and the court ruled that Oregon could deny benefits to Native Americans who used peyote in violation of state, and federal, drug laws. Scalia wrote that the Free Exercise Clause does not protect activities that are made criminal by generally applicable and religious-neutral law. McConnell’s belief is incorrect on this subject, and on substantive due process.

We urge the president to take a close look at the list above, and ask himself , "Who’s the best one?" Each one of them are highly-qualified legal minds, and have had their time on the bench. They have wrestled with questions regarding the Constitution, and have always decided within the constructionist/textualist/originalist point of view. The Constitution is already set in stone, and there are ways to amend it within it. The judiciary is not a legislature; they do not make laws. Jurists aren’t supposed to overrule the law, and all too often they seem to. Whether it is an outright breach like Kelo, or bit-by-bit incrementalism like Griswold, and later Roe, such activism need not be on the court.

The above people are anything but activists.

For the president, he should look at this as a long-term victory. I know a lot of people, like Hugh Hewitt, think that this is a setback. On the contrary, the GOP can now get back in touch with it’s base. It wasn’t some wacky group of special interest groups. I really do hate to disagree with the los...er, the liberals on this, but they’re wrong. The base reacted to a nominee that was unqualified for the position she was appointed to. This will pull us together, not drive us apart. Ask yourself if you remember the last time either party had an open debate amongst themselves. This is the first of my recollection, and no I don’t consider the nutty debate of the liberals after their stunning six straight defeats at the ballot box. That was pure insanity from a party coming unhinged as they attempted to spin their "message" so people would believe them again. The problem with their message is that no matter how they spin it, the message is the same. It is elitism. It is spend-and-tax happy. It is anti small business. It is anti liberty. We aren’t that way, as the base spoke loudly over the reckless spending. Now, some elected officials are taking the appropriate action to deal with the party’s wayward ways.

It’s a victory for the party in the long term. In the short term, this is still a victory for the president. He can go back and nominate someone more to the base’s liking, and one that will have overwhelming support, as Roberts did when he was nominated. Further, it’s time for this president to start using the bully pulpit against some members of his own party, like the "Seditious Seven" (To use Thomas’ analogy of them) that helped cut the Gang of Fourteen deal. These fourteen higher-than-thou’s need to be taken down quickly and decisively. If the president nominates a solid jurist that neither side can deny, and the Democrats launch a filibuster, the president only needs sixty votes to end cloture, and fifty-one to crush the deal. This is a fight that is coming, and has been long overdue. "Now is the time for all good men to come tho the aid of their party." That adage is truer today than the day it was uttered, and it’s an adage the GOP should take to heart right now.

Mistress Pundit