The GOP Shouldn't Surrender on SCOTUS Fight

There are murmurs that some Senate Republicans may be reluctant to offer more than token opposition to whomever President Obama nominates to succeed John Paul Stevens on the Supreme Court. Senate Democrats, meanwhile, are demanding a “thoughtful and civil” confirmation process, a standard that seems to surface only when Democratic presidents are doing the nominating. 

But if Obama does what everyone knows he will do and nominates a liberal activist judge, Judiciary Republicans should approach their constitutional duty to advise and consent to the appointment of judges as if the future of the country depends on it – because it does.

They should ask tough and direct questions with language that everyday Americans can understand. And the questions should relate to the issues currently animating the electorate—health care, constitutional rights for terrorists and, yes, social issues.

Stevens told Obama that he will step down when the court finishes its work for the summer in late June or early July. And the president has said he wants to move quickly to select and confirm his replacement.

It’s no wonder. A Rasmussen poll this week found that 39 percent of Americans believe the court is “too liberal,” while just 25 percent believe it’s “too conservative.” A protracted confirmation debate over what’s sure to be a liberal activist judge would only further alienate the millions of Americans already upset over the Democrats’ liberal activist agenda only months before a crucial election.

But it seems some Republicans are hesitant to fight. In a Time magazine piece this week titled “Why the GOP isn’t spoiling for a Supreme Court fight,” Mark Halperin reported that there was almost no talk of the coming court vacancy at last weekend’s Southern Republican Leadership Conference. Speakers instead focused on issues like repealing health care and President Obama’s approach to America’s enemies.

Halperin spoke with GOP strategists who are advising Republicans to stay away from a nomination battle because confirmations often end up focusing on social issues. Halperin wrote, “Right now, to Republican leaders, national security and the economy remain far stronger vehicles for the rough ride back to power.”

But these issues are not distinct from those that could be raised during confirmation hearings. Republicans should ask the nominee whether he or she believes the Constitution allows government to force Americans to buy a good or service as a condition of lawful residence.

It doesn’t, of course, but that’s exactly what Obamacare’s individual mandate stipulates. Polls show a majority of Americans do not want to be forced to buy health insurance, and most recognize that the Constitution protects the right of citizens to make their own private healthcare decisions free of government coercion.

The loud affirmation of this fact would aid the dozens of states that are considering whether to fight to repeal the new law.

Obama’s kid-gloves treatment of America’s enemies riles many Americans. In 2008, the Supreme Court extended the constitutional right of habeus corpus, which allows prisoners to challenge their detainment in U.S. civilian courts, to suspected terrorists captured on foreign battlefields.

Republicans should ask the nominee whether the Constitution was written to ensure that foreign combatants who attack the U.S. are entitled to the same rights as American citizens.

While some GOP strategists are advising the party to stay away from social issues, that’s what GOP strategists always say. Yet, in every election, issues like same-sex marriage and abortion end up as a net benefit to the party.

Judiciary Republicans should ask the nominee whether he or she believes in a hitherto undiscovered right for same-sex couples to marry. The Left thinks gay nuptials are inevitable, but voters of 30 states have considered the question and soundly voted it down.

This year homosexual activists in California couldn’t even gather the requisite signatures to place repeal of California’s constitutional ban on same-sex marriage on the ballot.
Democrats have already hinted at their confirmation strategy. Senator Pat Leahy (D-VT), chairman of the Judiciary Committee, said this week, “I hope that senators on both sides of the aisle will make this process a thoughtful and civil discourse.”

Let me translate: “If Republicans ask the type of tough questions that were asked during the health care debate, they will be branded just as opponents of Obamacare were branded, as uncivil, ignorant and possibly racist or sexist or both (depending on the nominee).

As a veteran of many judicial confirmation battles, I find it exasperating that Democrats are never obligated to abide by the “thoughtful and civil” standard. Not when their incendiary attacks on Samuel Alito caused his wife to run out of the hearing room in tears; not during their “high-tech lynching” of Clarence Thomas; and certainly not when they disparaged Robert Bork as a judge who would preside over a land of “segregated lunch counters.” 

A new USA Today/Gallup poll shows that only 41 percent of Americans approve of the Democratic Party, its lowest rating in nearly two decades. Democrats’ popularity has plummeted in part because conservatives have been relentless in highlighting how far out of the mainstream their agenda is on everything from spending and healthcare to foreign policy.

In today’s anti-government atmosphere, and with midterm elections looming, it would be a mistake for Judiciary Republicans not to demand that a liberal nominee defend his or her belief that it’s government’s job to decide what’s best for citizens.

Reluctant Republicans should remember that voters have often been motivated by concerns over the make-up of our courts. Republicans can regain control of Congress — but they need to show they are willing to fight.  Their own futures at the ballot box may depend on it.