Why President Bush Should Reject a "Consensus" Nominee for the Supreme Court

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ACLJ.org

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May 24, 2011

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July 11, 2005

The retirement of Justice Sandra Day OConnor from the Supreme Court of the United States gives President Bush an important opportunity to leave a lasting legacy on the high court by making an appointment that is consistent with his judicial philosophy.

With Justice OConnor providing the swing vote on many of the high courts most important cultural decisions and her replacement likely to be thrust into a new term that puts the issue of abortion front and center there is increased pressure for President Bush to nominate what some of the liberals are calling a consensus nominee. 

A liberal activist group, People for the American Way, says President Bush should focus on nominating a bipartisan consensus nominee a nominee who PFAWs Ralph Neas calls a unity candidate.  While no one relishes a bitter battle over a Supreme Court nominee, President Bushs priority must remain focused on one thing:  putting forth a well qualified nominee who will faithfully interpret the Constitution and not legislate from the bench. 

In acknowledging the retirement of Justice OConnor, President Bush told the country he takes his responsibility of nominating a successor seriously and is looking at a wide variety of possible nominees who, as the President put it, meet a high standard of legal ability, judgment and integrity and who will faithfully interpret the Constitution and laws of our country.

The President wants a nominee who will faithfully interpret the Constitution.  This is at the core of his judicial philosophy and its a pledge he first made to the American people when he ran for the presidency.  Over the years, that message has not changed its only been repeatedly reinforced.  For example, in his State of the Union address this year, President Bush said judges have a duty to faithfully interpret the law, not legislate from the bench.  President Bush added that he has a constitutional responsibility to nominate men and women who understand the role of our courts in our democracy. 

For President Bush to select a consensus nominee is nonsense.  The President has the authority to nominate a well-qualified nominee.  This is not an election.  It is an appointment.  The Constitution is very clear:  the President nominates and the Senate provides advice and consent.

It is perfectly appropriate for the President to deliberate about this nomination process to consult his advisors and members of the Senate, as he has said he will do.  But, at the end of the day, it is up to the President and no one else to select a nominee to the high court.  Remember, it is a nominee of the Presidents choosing.  Not a consensus candidate.
 
Will there be a battle over President Bushs nominee?  Most likely. Liberal groups are likely to raise objections to any nominee President Bush puts forth.  But as the President reminded everyone in the wake of Justice OConnors retirement announcement that the nation deserves a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing, and a fair vote.

President Bush has said he wants Justice OConnors successor in place when the new term of the Supreme Court begins in October.  Its important that the high court have its full complement of nine Justices seated next term.  There will be many critical issues argued including a series of cases tackling one of the key cultural issues of the day:  the protection of human life.  Already on the docket, several cases involving abortion protests, assisted suicide, and notifying parents when children seek abortions.

We expect President Bush to follow through on his pledge to name a Supreme Court nominee who will not legislate from the bench a nominee who will uphold the Constitution and the rule of law.  That is exactly what the President is authorized to do under the Constitution.  And that is exactly what the nation deserves.


Jay Sekulow is chief counsel of the American Center for Law and Justice (ACLJ) which focuses on constitutional law and is based in Washington, D.C.  Mr. Sekulow frequently argues cases before the Supreme Court and is active in supporting President Bushs judicial nominees.