The Washington Post editorial page has been pretty sensible when it comes to President Bush’s judicial nominees. It backed the confirmation of John Roberts, and supported some of Bush’s controversial court of appeals nominees, including Miguel Estrada. Now apparently it wants to put any credibility it has gained to use in preventing the Supreme Court from becoming more conservative.
Hence today’s editorial, in which the Post signals that it will not support another conservative nominee unless he or she possesses something approaching Judge Roberts’ qualifications and temperament. Normally, this would pose no problem. There are several candidates who fit the bill, Judge Michael McConnell to name just one.
But the Post knows there’s a complicating factor — the pressure on President Bush to select a female or a minority. By artificially shrinking the pool, the “diversity” criterion makes it more difficult to find a conservative whom the Post would support. The Post, for example, might well conclude that two of the top female conservative candidates — Edith Jones and Janice Rogers Brown — are too aggressively conservative. It might also reach this conclusion about Miguel Estrada in the context of replacing Justice O’Connor, or might find that he lacks judicial experience. And so on. Indeed, just to makes its message clear, the Post warns that “some of the candidates reportedly being considered” would fall short of the its standards, and that their nomination “would be an unfortunate move.”
The Post helpfully provides the administration with the names of women and minority candidates “worthy of consideration.” The Post’s lack of good faith is reflected in the inclusion of Judge Jose Cabranes, initially placed on the federal bench by Jimmy Carter and elevated to the court of appeals by Bill Clinton. Clearly, the Post is seizing on the clamor for a minority and/or female Justice in order to promote its agenda of keeping the Court from moving in a conservative direction.
Fortunately, there are two easy ways out the trap the Post attempts to set. One is for the president to ignore the Post and nominate one of the “unfortunate” conservatives allegedly under consideration. The administration doesn’t need the Post’s support to get its nominee confirmed; it just needs a critical mass of the seven Democrats in the gang of 14 to oppose a filibuster. And these Senators do not want a filibuster because, unlike the Washington Post, most of them must run for re-election in red or swing states.
Alternatively (and preferably) the president can consider white males. In fact, if the options were structured (as the Post wants us to believe they are) such that to nominate a top notch candidate with the proper temperament, Bush must sacrifice either his apparent desire for “diversity” or his desire to nominate a judicial conservative, it would be an outrage (not merely “unfortunate”) for Bush to yield on philosophy.
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