July 05, 2005,
All weekend we heard from the likes of Ralph Neas (People for the American Way), Nan Aron (Alliance for Justice), and other leaders of a left-wing coalition insisting that President Bush nominate a "mainstream conservative" to the Supreme Court, or that he unite the nation with a "pragmatist" or "moderate" in the character of Sandra Day O'Connor. This is real chutzpah. These are the same people and groups that have conspired to undermine President Bush's judicial appointments for over four years, and now seek to derail any nominee to the Supreme Court who isn't a proven activist.
[The groups] also identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.
A copy of the talking points on Estrada's nomination prepared for Kennedy to present to the Democratic Caucus states, in part:
Key labor, civil rights, environmental, and administrative law cases are decided there, and we know it is a 'feeder' circuit for the Supreme Court. The White House is almost telling us that they plan to nominate him to the Supreme Court. We can't repeat the mistake we made with Clarence Thomas.
Clearly the Senate Democrats have a special contempt for minority judicial candidates who don't share their activist agenda and approach. Indeed, these minority candidates are believed to be more dangerous to their political objectives than white judicial candidates with whom they also disagree philosophically. Yet the fact that such a shameful mentality is written in black and white for all to read appears to have elicited no interest from the mainstream media. Kennedy was never asked anything about it during his many television appearances last weekend.
In a stunning April 17, 2002, memorandum purportedly written to Kennedy, a staffer states, in part:
Elaine [Jones of the NAACP Legal Defense Fund] would like the [Judiciary] Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided by the en banc 6th Circuit [meaning, all the judges on the Court]. ...The thinking is that the current 6th Circuit will sustain the affirmative action program but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under the 6th Circuit rules, to review the case and vote on it.
Plainly, this was an attempt to fix the outcome of a case, and the Senate Democrats went along with it.
The groups even opposed Professor Michael McConnell's nomination to the Tenth Circuit, even though he would be endorsed by numerous liberal lawyers and law professors.
In September 18, 2002, the Alliance for Justice wrote, in part, the following about McConnell:
President Bush has nominated ... McConnell to a seat on the [Tenth Circuit] in an attempt to continue to pack the circuit courts with judges prepared to carry out his administration's anti-choice, anti-consumer, anti-civil rights, anti-labor and anti-environment agenda. Through his numerous academic articles, Professor McConnell promotes a jurisprudence of 'originalism,' a method of interpreting the Constitution that calls for analyzing how its framers would have decided an issue at the time that the relevant part of the Constitution was adopted. If confirmed to a lifetime seat on the federal appellate bench, Professor McConnell would be in a position to apply his academic theories, as well as the extremist ideas he propounds in non-academic publications, to further roll back protections for well-established Constitutional rights, including civil rights and reproductive freedoms.
Here we have the Left's litmus test. Either the president's nominees embrace the full agenda of the Left and are willing to impose it by judicial fiat (which they now label "mainstream conservatism") or they're labeled right-wing extremists. In short, highly qualified nominees who actually believe in interpreting and upholding the Constitution must be stopped at all costs including through the continuation of unconstitutional filibusters if need be.
The memoranda contain much more information exposing the sinister strategies of the Left, including leading Senate Democrats. They put to rest any suggestion that these individuals and groups are serious about working with the president or honestly considering any non-activist for our top courts (especially the Supreme Court) despite their best recent efforts to give a public appearance of accommodation and evenhandedness. They're well worth reading, even as the mainstream media chooses to ignore them. (The memoranda are printed in my book's Appendix, if you can't find them elsewhere.)
We conservatives didn't pick this fight, but we must win it. It began with the assault on Bob Bork, and too many sat passively while it happened. Meanwhile, President Clinton's activist nominees, Ruth Bader Ginsburg and Stephen Breyer, both sailed through the confirmation process. They weren't smeared. Their video-rental records weren't combed through. Their trash cans weren't searched. Witnesses weren't called to testify with phony stories about pubic hair on coke cans. But now is the time to put an end to this. Thanks to the Left and its insistence on judicial supremacy, the constitutional, economic, cultural, and political stakes are too high to ignore. No more stealth candidates like David Souter, or compromise candidates like Anthony Kennedy, or p.c. candidates like Sandra Day O'Connor in hopes of quieting the Left's opposition. And if the president nominates originalists to this and any other upcoming Court openings, as he assured the public repeatedly he would do, his nominees deserve our complete and active support. And they will have it.
Mark R. Levin is author of the bestselling Men In Black, president of Landmark Legal Foundation, and a radio talk-show host on WABC in New York.