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Charles Kopp - Contributor

Charles Kopp is a graduate of the New School for Social Research. He is a composer and musician, and an ardent lover of poetry. He has been a teacher and a systems analyst. In Lafayette, California, he now designs websites and works on creative projects. He can be contacted at [go to Kopp index]

Reality Check On Judicial Nominations
It is imperative we do NOT preserve the balance of the court...
[Charles Kopp] 7/14/05

Clearly the Democratic Party’s talking point now is the assertion that President Bush must appoint to the Supreme Court a “moderate” (meaning, a Justice essentially in agreement with Senators Kennedy and Boxer) in order to preserve the balance of the court. By doing this, the President can assure the nation a smooth and dignified confirmation process. The reasonableness of such a moderate course of action is being hoped for, it would seem, by those very politicians who have shown a visceral hatred for the President for years. Clearly they hope now to be accepted as the moderate and calm leaders they have never been. It sounds so fair: please be a uniter and appoint someone reasonable, for a change. Failing to do this, the President will be held personally responsible for the ensuing lack of dignity that has already been planned in great detail.

One can search in vain, in the history of Presidential nominations, for a tradition of preserving the balance of the Supreme Court. Presidents from a broad range of philosophies have tried hard to appoint Justices who substantially agreed with them. Understandably, members of the Democratic Party are fond of the present Supreme Court and would like to freeze the court as it presently exists, and so they find suddenly a brand new mandate that Presidents must replace a departing justice with another justice of similar views. It is almost as if they had discovered long lost articles of the Constitution of the United States. But there is no such tradition, and no such mandate, and even more importantly, it would be a terrible idea.

The plain truth of history is that humanity has experiences and continues to change. We have new ideas. We rediscover value in old ideas which we’d overlooked or even discarded. We try out an idea that seems worthy, and sometimes find in its unintended consequences that we were wrong. Sometimes our moral sensibilities rise to a higher level, and we recognize evil in something we previously accepted as normal. None of this growth and change can ever be a part of our judicial system, if we “freeze” the system in one time, in one set of ideas, in a permanent set of assigned voting blocks.

One only has to examine the past to see the evident necessity of change. Those who clamor now to have the present court preserved in perpetuity- how would they like it if we had frozen the Supreme Court of the Dred Scott decision? How would they like to live eternally with the Court that found constitutionality in the internment of Japanese-American citizens? It is a part of our existence, that even settled law may come in time to be reversed, whether we celebrate this or protest against it.

Have we somehow reached the absolute pinnacle of understanding, such that we will never again find good reason to change or grow? Is there no further enlightenment available in the future of humanity? Many members of the Democratic Party seem to believe we reached this pinnacle in 1973, and all our future can ever be is an effort to progress back to that mighty height.

But human experience, and American experience, is by nature growing and changing, and no wise person will abandon the prospect of becoming wiser and better, tomorrow.

Not only is preservation of the current Court a terrible idea. It is also a transparent political ploy by the American left. They have sent dozens of talking heads out to pronounce the mandate for President Bush to nominate a justice who explicitly agrees with them in advance of confirmation, on Roe and on affirmative action. No doubt they have already written the follow-up speeches full of fury and pain, in which they will bemoan how the President has done the dastardly and evil thing of nominating a conservative. The memory of President Clinton replacing a conservative Justice with ACLU staff lawyer Ruth Bader Ginsburg will not diminish the outrage and agony that will be expressed, when President Bush nominates a conservative.

Certainly the mainstream media will never remind the public, of where Justice Ginsburg came from, or who she was nominated to replace. The editors of official DNC media outlets such as the New York Times and CBS News will simply add their own editorial invective to the chorus of denunciations from the Democratic Party. How dare the President of the United States nominate a conservative! The arrogance! The divisiveness! This tripe will be repeated so loudly and so often, that many will believe it.

And the ploy may work, even as transparent and pathetic as it is, even as bad an idea as it is. To overcome this ploy, the President himself and the Republicans in the Senate will have to show some spine. They will have to be articulate and reasoned in the face of feigned outrage and Moore-Dean style character assassination. Senator Clinton has already pronounced the President as power-hungry as Hitler, and as unintelligent as Alfred E. Newman, even before he nominates a conservative to the Supreme Court. What more vehement language is left for her to adopt, after the nomination, one can only wonder. Will the public see through it? Will the Senators stand firm? We can only hope so. It is a historical imperative for us, to reject now and always this flimsy and wishfully constructed mandate to preserve the balance on the court. CRO

copyright 2005 Charles Kopp



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