To the Victor Goes the Court

Elections have consequences. George W. Bush has won two elections as president of the United States and now he gets to name Supreme Court justices. And as long as those nominees are qualified and not extreme, they deserve confirmation. His first nominee, John Roberts, should be confirmed unless something unforeseen surfaces during Senate hearings.

Back when I was in law school at Georgetown during the 1968 presidential election, I had heated debates with some of my anti-war friends who would not vote for the Democratic nominee, Hubert Humphrey, because of his support for the Vietnam War. My argument then was that elections have consequences. If Richard Nixon were to win, he would have the opportunity to appoint Supreme Court justices who would oppose everything my friends held dear, I argued.

Nixon, of course, did win, and he tried to put some very questionable nominees on the court. Two of those were rejected by the Democratic-controlled Senate. Democrats, of course, don’t control the Senate today and thus will have a difficult time blocking Bush nominees.

This brings us to the 2000 election. Some liberals opposed Al Gore and voted for Ralph Nader as a protest. Nader pulled in enough votes in key states like Florida to hand the election to George W. Bush. Once again, elections have consequences, and President Bush will have the opportunity to name Supreme Court justices who oppose all that many of those Naderites hold dear.

That brings us to President Bush’s first nominee, John Roberts. Judge Roberts clearly is qualified on the merits. He was a magna cum laude graduate of Harvard and was law review at Harvard Law School. He has argued a significant number of cases before the Supreme Court and generally has a good reputation among lawyers who know him, even if they don’t share his views.

Clearly, the Senate has the right to ask him tough questions during the confirmation process and to make its own determination on his fitness for office. President Bush was careful to nominate someone with a strong record as an attorney, even if his judicial experience is limited. This careful homework is a tribute to the president’s White House counsel, Harriet Miers, who vetted all potential nominees. Harriet is a very competent attorney and is worthy of consideration herself for a future vacancy.

The most justifiable criticism of President Bush at this juncture is that he chose not to put another woman on the Supreme Court to replace Justice Sandra Day O’Connor. Women make up more than half of the population and in many instances constitute at least 50 percent of entering law school classes. There are a number of competent women on the federal district and appeals court bench. Let’s hope that when the next vacancy occurs, President Bush recognizes the valuable contribution of women to our legal system.

There is no way of predicting how many vacancies President Bush will have on the Supreme Court during the remaining three and a half years of his second term. The assumption is that he will have several more opportunities to appoint Supreme Court justices.

The Supreme Court plays a vital role in making democracy work. Who serves on the court can make an enormous difference in the future direction of our country. Some people on the right would have the court play a very limited role, but that’s not consistent with the history of our country. Our founding fathers set up the federal court system as a check on abuses by the legislative and executive branches and the courts generally have filled this role with both restraint and wisdom.

No one can seriously argue that what the Supreme Court did in ending racial segregation in this country was not the right thing to do. Nor can people argue that the Supreme Court’s one-man-one-vote decisions providing for equal population Congressional and legislative districts were not the right things to do.

Above all, as I mentioned at the outset to this article, elections have consequences. George Bush won and he now gets to make these appointments. As long as he chooses highly qualified nominees like Judge Roberts, he will make his mark on the Supreme Court.

Next time we vote for president, keep the Supreme Court nominations in mind. For some of us, few things a president does in his term are more important for the future of our country.

Martin Frost served in Congress from 1979 to 2005, representing a diverse district in the Dallas-Ft. Worth area. He served two terms as chairman of the House Democratic Caucus, the third-ranking leadership position for House Democrats, and two terms as chairman of the Democratic Congressional Campaign Committee. Frost serves as a regular contributor to FOX News Channel. He holds a Bachelor of Journalism degree from the University of Missouri and a law degree from the Georgetown Law Center.

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