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Bush Earned the Right To Pick the Next Justice, Not the Democrats

At the end of the film “Saving Private Ryan,” Tom Hanks’ character, Capt. Miller, lies mortally wounded with many of his platoon already dead, having sacrificed themselves for “a cause greater than themselves.” In his last breath, Miller tells the young soldier, for whom so many have given their lives, including his own, “Earn this.”

There’s a lesson in that challenge that Democrats seem to have forgotten as they clamor for “joint power” in selecting the next Supreme Court justice. In all of their chest-beating calls for “moderation” and “consensus” and “cooperation,” Democrats, led by Sens. Edward Kennedy (Mass.) and Charles Schumer (N.Y.), are conveniently ignoring the one stumbling block to their desire for presidential power sharing — those pesky democratic elections when a president and his party earn the right to govern through majority rule and, in so doing, to also choose the nation’s judicial nominees.

[IMGCAP(1)]In its Monday editorial, even The Washington Post acknowledged, “Liberals and Democrats, having lost the election, cannot reasonably ask Mr. Bush to nominate a justice to suit their tastes.”

The Post went on to say, however, “But that doesn’t mean a full-fledged war is inevitable.”

The weakness in the Post’s assertion is that it assumes Democrats actually accept the outcome of democratic elections if they find themselves on the losing end. In denial after the 2000 election, they carped their way to a second defeat in 2002 and repeated their mistakes in 2004 with a negative attack strategy devoid of ideas.

Since November, not much has changed. We have heard Senate Minority Leader Harry Reid (D-Nev.) call President Bush a “liar” and a “loser,” but we have seen no serious plan from his party to cure the nation’s energy ills. This week, Sen. Hillary Rodham Clinton (D-N.Y.) compared Bush to Mad magazine’s ditzy cover boy, Alfred E. Newman, but we have heard no Social Security reform plan from her or her fellow Democrats.

We’ve seen a parade of critics from Senate Minority Whip Dick Durbin (D-Ill.) to House Minority Leader Nancy Pelosi (D-Calif.) attack the president almost daily on nearly every conceivable issue, while failing, at the same time, to offer real solutions to the nation’s challenges. Democrats don’t have the constitutional right to choose Sandra Day O’Connor’s replacement because they haven’t earned it.

To its credit, the Bush administration has wisely begun a consultative process with both Republican and Democratic leaders about the impending nomination in an effort to help encourage a “dignified process” as the president suggested. Still, in the end, like every president before him, it is Bush’s right and responsibility to make the final selection.

When the Democrats win the White House, it will be Kennedy and Schumer’s turn at bat. What should we expect? The last time they earned that privilege in the 1992 election, President Bill Clinton did some perfunctory consultations and then appointed one of the most liberal justices in modern times — Ruth Bader Ginsburg.

Edward Whelan of the Ethics and Policy Center, notes that Ginsburg “attacked the Boy Scouts and Girl Scouts as organizations that perpetuate stereotyped sex roles” and also … “proposed abolishing Mother’s and Father’s Day.”

She also “expressed sympathy” for the position that a constitutional right to prostitution and polygamy exists, and since joining the court, her rulings have been consistently far left of center. Only someone in a mind meld with the likes of Michael Moore could possibly see Ginsburg as a centrist choice.

If ever a case could have been made for filibustering a nominee because of his or her “extreme” views, the Ginsburg nomination was it. But instead of an ugly floor fight, Ginsburg sailed through the Senate because Republicans accepted the outcome of the 1992 election, believed in the concept of majority rule, and respected both the will of the people and right of Clinton to his choice of nominees.

Now, the tables are turned: Schumer, overheard on his cellphone last week discussing Democratic Party strategy on the nomination, said, “We are contemplating how we are going to go to war over this.”

And his troops are already mobilizing. Far-left liberal interest groups like People for the American Way and the Alliance for Justice have formed the Coalition for a Fair and Independent Judiciary with a full-scale war room.

Meanwhile,, one of the left’s most extreme interest groups, has already begun hosting house parties across the country to prevent the nomination of what they term a “radical right judge.” One MoveOn host even sent “talking points” to potential guests saying, “We don’t want to come off as leftist, liberal activists. We want to come across as we are — regular folks who are finally saying enough is enough. … We’re on the side of moderation.” Right, and Howard Dean is a country doctor.

But this is nothing new. Democrats have a long-established track record of declaring all-out war when it comes to Supreme Court nominees. The headline in a July 10 New York Times article read: “Democrats Seek Greater Voice in Nomination.” That’s all well and good, but if the Democrats want more say in choosing the Supreme Court, they should earn it the old-fashioned way — by winning an election.

David Winston is president of The Winston Group, a Republican polling firm.

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