Put a conservative on the court
CRITICS INTERPRET Harriet Miers's withdrawal as yet another sign that George W. Bush kowtows to his conservative base. Miers had to go, they will say, because she was squishy on originalism, a legal approach favored by conservatives. But this argument has it backwards. The reason Miers withdrew is not because of the pull of the conservative base -- it is because of the grip that the left exerts over the nomination process.
In the current state of judicial politics, the left gets to play a game of ''heads we win, tails we break even." When the Democrats are in control, they produce nominees who are reliably left-leaning. Witness Ruth Bader Ginsburg, whose prior writings and ACLU credentials left no doubt where she would stand on such matters as abortion rights once she got to the court.
Increasingly under Republicans, however, we can no longer expect nominees who are firmly committed to originalism or any other conservative principle. Indeed, it seems that in the current climate the most important qualification is the ability to be confirmed with a minimum of fuss. Witness the ultimate stealth nominee, David Souter, who, with a limited paper trail but the assurances of George H.W. Bush, proved himself to be a reliably disappointing jurist. We cannot be sure of John G. Roberts Jr., the newly appointed chief justice. And Miers, who also might have gone either way, would have made it to the court but for her obvious lack of qualifications.
Thus, while the left champions judges who espouse its agenda, the right feels constrained to choose judges who simply pledge allegiance to the rule of law. If, as in earlier times, judges did mainly stick to ruling on the law, then the whole political spectacle that surrounds Supreme Court nominations would disappear.
But that is not what's been going on the past 50 years or so. Instead, we have had the steady expansion of court-imposed legislation, of which Roe and Griswold are prime examples. The conservative agenda consists of unraveling this whole line of judicial activism and getting the court back into the business of ruling on the facts and on the law.
In this quest, conservatives now find themselves increasingly frustrated. They find themselves wondering what it will take to rescue the court from left-leaning justices who fabricate privacy rights, run roughshod over the 10th Amendment, and otherwise legislate from the bench. Those few conservatives who live in Massachusetts can only wonder how judges appointed by Republican governors could unearth an interpretation of the state Constitution that sees gay marriage as a protected right.
A major obstacle to rescuing the court is the anticipated inquisition of openly conservative candidates. For conservatives, memories of the confirmation hearings of Robert Bork and Clarence Thomas are still very fresh. As President Bush considers the next nomination, there will be calls to forgo ''divisiveness" and to treat as ''settled law" decisions made by earlier courts that never hesitated to use the law for the purpose of implementing their own social agenda.
Whether this president, besieged as he is on many fronts, can salvage his presidency depends now how strongly he can resist this kind of pressure. He needs to nominate a supremely qualified candidate like Janice Rogers Brown, who said, ''Where government advances -- and it advances relentlessly -- freedom is imperiled, community impoverished, religion marginalized, and civilization itself jeopardized." Or Priscilla Owen, who has the distinction of being criticized by the People for the American Way for her ''pursuit of an ultra-conservative agenda." Or J. Michael Luttig, a protege of Antonin Scalia, who, from the Fourth Circuit Court of Appeals, upheld a ban on partial birth abortion.
Unfortunately for the prospects of such candidates, the Republican Party has allowed itself to be cowed into submission by the strong-arm tactics of the left -- as evidenced in particular by the scurrilous attack suffered by Bork. Even Roberts, with his impeccable credentials, was subject to a scathing campaign by liberal interest groups.
It is not necessary for George W. Bush to stoop to any such level. But he must remember that he is president, that his party controls the Senate, and that he was elected because Americans saw him as a superior alternative to what the Democrats had to offer. This time, he must use his mandate and nominate a candidate who is both capable and who is on the record as espousing an originalist interpretation of the Constitution.
David G. Tuerck is executive director of the Beacon Hill Institute and chairman and professor of economics at Suffolk University. 
