Last month I noted that the New York Times had found its newest “conservative” pet, University of Minnesota law professor Richard Painter, who offered up a “conservative” case for campaign finance reform. Today Painter, who served in the White House counsel’s office under George W. Bush, returns to the Times to tell us that “Bush Would Have Nominated Garland.” His advice boils down to: when the other party holds the Senate, it’s best to pre-emptively cave.
No, seriously—that’s his argument:
The best option in this situation is for the president to nominate a consensus candidate. The president should choose someone like Justice Anthony M. Kennedy, whom President Reagan later nominated [after Bork was rejected].
Judge Garland is just the kind of candidate we would have advised President Bush to nominate if he had been in this situation.
At least Obama can be given points for nominating a Democrat. Couldn’t we at least expect that President Bush would have appointed a “moderate” Republican? If this is the quality of thought from the Bush White House no wonder we almost got Harriett Miers (whom Painter airbrushes out of his account). Another reason to be glad we’re rid of the Bushes this election cycle.
Painter also skips over Bush I’s nomination of Clarence Thomas when the Senate was in Democratic hands. At least the old man had more moxie than Painter.
Two further observations: First, about the Anthony Kennedy nomination. Reagan was so mad after Bork was voted down and Doug Ginsberg had to withdraw that he wrote in his diary that he was tempted to leave the seat unfilled and let the next president make the appointment. He had to be talked into appointing Kennedy, whom his team knew was less than a reliable conservative, but was the only person left that the Justice Department had reviewed and had ready for a nomination. I still think Reagan should have installed Bork on the Supreme Court in a recess appointment, as a way of showing Democrats that they should not be rewarded for their shameful demagoguery.
Second, about Garland being a “moderate” judge. This is merely code for saying he puts his pro-government power opinions in bland language. Who wants a “moderate” when it comes to upholding the Constitution? Here the famous phrase of Barry Goldwater applies nicely: “Moderation in the defense of justice is no virtue.”
Let’s not let ourselves get Paintered into a corner.