Georgetown University’s Newspaper of Record since 1920

The Hoya

Georgetown University’s Newspaper of Record since 1920

The Hoya

Georgetown University’s Newspaper of Record since 1920

The Hoya

Now Hiring: Qualified Supreme Court Justice

Following the recent retirement announcement of Justice John Paul Stevens, amateur political prognosticators have been reminiscing over the confirmation battles of recent memory. I have noticed one question persistently comes up: Remember, they inquire, when Bush tried to appoint that woman to the Court? What was her name, again?

Her name was Harriet Miers. She was the White House counsel, a close friend of President Bush and in 2005, became possibly the least qualified candidate for the Supreme Court in American history. Whenever I think of the Miers debacle, one quote in particular comes to mind.

“However nice, helpful, prompt and tidy she is, Harriet Miers isn’t qualified to play a Supreme Court justice on ‘The West Wing,’ let alone to be a real one.”

I did not lift that zinger from one of Bill Maher’s polemical rants, a “Daily Show” clip, a Barney Frank interview or an Al Franken book. Rather, the words belong to Ann Coulter, who penned columns and crisscrossed the cable news circuit to take down Miers.

Coulter was not alone. Republican lawmakers and activists – furious that Bush would nominate someone without a record on major political and constitutional issues – effectively mobilized to defeat the Miers nomination. Within a month, they did just that.

Conservatives firmly grasp the significance of the opportunity to make an appointment to the Supreme Court and generally agree on the criteria that make for a model justice. Liberals, then, must take a page from the Republicans’ playbook.

In the wake of Stevens’ retirement announcement, a number of prominent progressive commentators have called for President Obama to appoint a stalwart of the liberal cause to the Court. But it is not yet clear if they really mean it. The Senate’s agenda is already packed with too many major bills promising too many divisive fights for one year, especially an election year. If a nomination spat eats up time and political capital while pushing a climate bill or immigration reform to the side, would liberal interest groups still embrace the challenge?

Really, they should. Of all the actions a president can take during his term in office, court appointments are generally the most enduring and momentous. This is especially true for a Democrat in the White House, as the party has retreated from several important planks of the liberal vision.

In the past several elections, Democrats have abandoned their once robust commitment to separation of church and state. Democrats now flee at the mention of gun control proposals. On gay rights, the party pursues a weak agenda at a tepid pace while most of its leaders still officially oppose gay marriage.

The Court, however, can and should stand as a just interpreter of the Constitution and defender of minority rights when and where Democrats cannot.

But before they can mobilize to achieve this vision, Democrats must decide how to evaluate potential nominees.

One approach that Beltway insiders seem to repeatedly advocate following Court openings is the notion of tapping a politician rather than a career jurist for the job. The strategy here is that this dream candidate will use the powers of persuasion she picked up in the political trenches to realign coalitions on the Court and convince moderates to join in liberal decisions. That vision, however, is a fantasy – justices will be impressed by cogent legal arguments, not backroom legislative deal making.

A characteristic that a nominee should have is boldness, or a willingness to take courageous stances without regard to its effect on future career prospects. In other words, a nominee should not appear to have prepared for the job by craftily avoiding taking positions on controversial issues.

Among the president’s reported short list of nominees, several fit the bill on this front. Seventh circuit judge Diane Wood indicated support for a ninth circuit decision to strip “under God” from the Pledge of Allegiance, despite a torrent of opposition to the Court’s decision from politicians across the country.

Former Chief Justice of the Georgia Supreme Court Leah Ward Sears stood up to the Court’s conservative bloc so many times that in 2004 for the first time in state history, Republicans waged a concerted re-election campaign against a sitting chief justice.

Over the past week, a growing number of liberals have come out against nominating U.S. Solicitor General Elena Kagan due to her scant record and support for expansive executive power. This is an encouraging step, and more Democrats should join this effort. In addition, however, they need to be more proactive in the nomination debate. Rather than focusing solely on what they do not want in a nominee, it is time for Democrats to start emphasizing what they do.

Sam Harbourt is a senior in the School of Foreign Service. He can be reached at The Pragmatic Progressive appears every other Friday.

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