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Moderate or bust for Bush page 2
If President Bush wants to be remembered by everyone for doing something courageous, he ought to choose a moderate to replace Justice O'Connor on the Supreme Court.

  Richard Amrhine's archive
  E-mail Richard Amrhine
Date published: 7/17/2005



Five years later, when Chief Justice Warren Burger announced his retirement, Reagan chose to move Justice William H. Rehnquist up, and to nominate Scalia as the associate justice to replace him.

History suggests that even though Republicans still owned the Senate, the ultra-conservative Scalia cleared confirmation without a fight largely because so much attention was focused on Rehnquist's promotion. We know now that Rehnquist is a relative moderate compared to Scalia.

Reagan's third opportunity came when Justice Lewis F. Powell Jr. resigned in June 1987. In the eight months between the ill-fated nomination of Bork, and Kennedy's confirmation in February 1988, the fallout from the Iran-Contra scandal took hold, and the Republicans were swept out of the Senate, trading their six-seat majority for a 10-seat minority in the 1986 mid-term elections.

Kennedy was not a conservative zealot, but was Reagan's loyal and trusted friend--not unlike what Attorney General Alberto Gonzales is to Bush. As a moderate, Kennedy was a crowd-pleaser, which is what Bush needs. Gonzales, on the other hand, seems to antagonize almost everyone. Kennedy often has voted with the court's conservative bloc, but has been on both sides of the abortion issue.

President Bush doesn't like to discuss these thoughts about Supreme Court nominees except to say that he favors a "strict constructionist," which has become a euphemism for an anti-abortion view because there is no mention of abortion rights per se in the Constitution.

Nor is there any mention in the Constitution of property rights on the moon, or exploitation of the Internet, because the founding fathers had no reason to consider such issues.

The president is said to be more concerned about whether his nominees would be effective in dispensing justice, than about their positions on abortion and other hot-button issues.

But while the president may insist he has no nominee "litmus test" on abortion, gay rights, or affirmative action, senators and their constituents do. He would do well not to choose someone with a record that says "ideological lightning rod."

When the time comes to replace Rehnquist, Bush will need to decide whether to nominate a new chief justice, or to follow Reagan's example and move a current justice up.

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