Frist In Stem Cells, Last In Primaries

Bill Frist's announcement (to the shock of many pro-lifers) that he now favors embryonic stem cell research is a perfect case demonstration of why it's so important to know a person's philosophy in order to understand what he's going to do in the future.

Some admirers have recently hailed Sandra Day O'Connor because she doesn't "subscribe to an abstract judicial philosophy" on the Supreme Court. This is seen by many to be a great virtue. All it really means, however, is that she's a pragmatist. Indeed, most profiles of her describe her with exactly that term--and most even mean it as a compliment.

But to say that someone is a "pragmatist" is to say that she does whatever she thinks will work at any given moment. Notions of true and false and right and wrong and good and evil are abstract concepts--and a person who subscribes to no abstracts--in other words, a pragmatist--is by definition making decisions without regard to these things.

With her reasoning removed from any sort of transcendent philosophical framework, a pragmatist is unpredictable, since what will work in any given moment changes and her opinions about what will work also change. Many interpret this philosophical barrenness as intellectual depth, but in reality it is just the opposite--intellectual laziness. When Sandra Day O'Connor issued her pragmatic, what-I-think-will-work opinions from the bench, she was simply substituting her own personal opinions for those of the people's representatives and the framers of the Constitution, and enshrining them as law.

With yesterday's announcement, we see that Bill Frist, despite his coziness with pro-lifers, is, like Sandra Day O'Connor, simply a pragmatist with no real intellectual framework. Because there is no real philosophical foundation for his sometimes pro-life positions, they rest on nothing substantial and are eminently mutable.

According to the New York Times' account:

"I am pro-life," Mr. Frist says in the speech, arguing that he can reconcile his support for the science with his own Christian faith. "I believe human life begins at conception."

But at the same time, he says, "I also believe that embryonic stem cell research should be encouraged and supported."

This is an utterly astounding snippet. What Frist is saying here is, in essence, that an embryo is a real human life, and that sometimes it should be killed for the convenience of others. It's certainly a popular position, and one taken by most of the Democratic party. But whatever else it is, it's certainly not pro-life, nor is it intellectually defensible.

The pro-life position is that life is inherently valuable, and as such deserves to be protected. Those who believe otherwise are not pro-life, even though they may happen to come to conclusions on some issues that align them with pro-lifers. Any who do not take the opinion that human life is inherently valuable will always reach a point of compromise where they are willing to accept the destruction of some lives for utilitarian purposes. Because human life is only relatively valuable (rather than inherently valuable), it can be destroyed if some "higher cause can be found." The only question then is when that point of destruction will be--mere quibbling over timing. What then results looks very much like the article I posted yesterday, where one utilitarian says "I think it's immoral to sacrifice a life past 14 days" and another utilitarian says "I think it's immoral to sacrifice a life after nine months." Both agree with the premise that it's okay to sacrifice the life. They simply disagree on when.

Yesterday, Bill Frist said "Cure today may be just a theory, a hope, a dream. But the promise is powerful enough that I believe this research deserves our increased energy and focus. Embryonic stem cell research must be supported."

With that pious-sounding quote, Frist demonstrated that there is no real philosophical difference between him and the infamous Peter Singer of Princeton, who says that children can be killed without committing a moral wrong even months after birth. Frist is saying that because its "promise" is "powerful," embryonic stem cell research "must be supported"--even though by his own reckoning the embryo is a real human life.

Both Frist and Singer agree that human life is not inherently valuable, and both agree that in some circumstances it is fine to sacrifice a child's life for utilitarian purposes. The only thing they currently disagree about is the timing. And the only ultimate difference between them is that Singer hasn't tried to fool pro-lifers into thinking he's one of them.

This is why you'll see me continuing to demand information about John Roberts' judicial philosophy. It is not enough that he frequently comes down on the same side of the political fence that I do. I want to know the why. Because without the why, there's no way to know what he'll do in the future. And everyone else without a clearly articulated why has failed us at every crucial point.

Sign Me Up

Well, that makes it official. I'm on board for the Cheney '08 campaign!

Dr. Mengele, Call Your Office

This is what it looks like when utilitarian bioethicists try to draw arbitrary lines in the sand.

Wishful Thinking?

The conclusion of TIME magazine's examination of Supreme Court nominee John Roberts:

For now, the only label all but tattooed on Roberts' forehead simply reads, CONSERVATIVE BUT NOT AN IDEOLOGUE--which makes it impossible to know the brokering role he might assume. It is possible that Bush thinks he has found a bomb thrower with a pleasant face. But the choice could indicate where the President comes down between the two species of conservatives who have been jockeying for position on the Supreme Court-- those who remain committed to the sanctity of the institution and its traditions and those who want to blow it up.

When Roberts spoke last week of the lump in his throat whenever he climbed the marble stairs, it rang true to anyone who had ever watched him in action. And it would match the history and mystery of the court if it turned out that Roberts ultimately alienates conservatives and not those who fear any Republican appointee. Roberts may agree in spirit with those who see the past 50 years of jurisprudence as too expansive and too intrusive but respect too much the way the law is shaped to ride in and blowtorch it. He may just prove willing to conserve even opinions he faults. If that is so, then it will not be the liberals who come to wonder at George Bush's choice.

Since he's not going to answer judicial philosophy questions, none of us will really know until he starts issuing opinions.

Go Ask Alice

This time-wasting website is a lot like heroin. At least from what I'm told about heroin.

At first, the game brings a euphoric delight. It makes you feel good all over, draws you in, and you become quickly addicted.

And then it turns. The addiction far outlasts the euphoria, and you find yourself in a never-ending spiral of despair, leading you into near suicidal despondency.

Still, if you have a few minutes to kill, I highly recommend it! (Hat tip: Jonah at The Corner.)

High-Tech Lynchings

Robert Novak includes an interesting historical note in his column today:

There is no constitutional or historical precedent for subjecting judicial choices to a senatorial third degree. No Supreme Court nominee was even interrogated by the Senate until 1925, and committee questioning was sporadic until it became standard confirmation practice in 1955.

The Senate's notion of self-importance in the matter of Supreme Court nominees seems to be, like many of the Court's rulings, a wholesale invention of its own collective mind. Next time you hear a senator lamenting "the process," point out to him that he's historically free to get his big, fat nose out of it.

Past The Break(ing)Point

It's interesting to watch the evangelical and conservative opinion makers move the boundary markers on what to expect from President Bush's Supreme Court nominee.

For years, conservatives have been demanding a textualist in the Scalia/Thomas mold, and the president has repeatedly assured us that Scalia and Thomas are his two favorite justices and that they will be his template in choosing a new justice. Then last week, the president nominated John Roberts, a virtual cypher who, while being smart and well-liked, has testified before Congress that he actually has no judicial philosophy.

Suddenly, we're now being told that we can expect Roberts to be a good, strong "moderate"--as if that's what we expected all along. We were promised Scalia and Thomas, and we're now being told to accept Anthony Kennedy and Sandra Day O'Connor as if they were what we had always wanted. Perplexingly, most Christian leaders are going right along with it.

Chuck Colson, whom I normally respect a great deal, now writes that Christians need to loosen up on the whole Roberts thing:

Now, I understand the concern, of course. There’s a lot at stake in this and subsequent nominations. But I’m troubled by the lack of political sophistication among Christians. In matters of culture, we must view issues and events from a long-range perspective. The cultural mess we’re in didn’t get this way overnight or even over a decade. Arresting the slide and reversing the direction of our culture will take even longer.

For instance, even if the Supreme Court were to reverse Roe—which I pray they do—the struggle for the sanctity of human life would simply shift to state capitals. Christians would have to convince their fellow citizens to outlaw or severely restrict what had previously been deemed a constitutional right.

Notice how expectations are being revised drastically downward? Whereas conservative Christians have been looking for Supreme Court justices who will reject the wild judicial overreaching that gave us Roe, we're now being told "Hey, Roe is only a symptom. Even if it were overruled--which is far too much for us to expect--it wouldn't really change anything." Translation: Roberts isn't going to do a thing about scaling back judicially created constitutional "rights," so we'd better turn our attention elsewhere. But keep voting for Republicans, because deep down they're with you.

Some facts I think Mr. Colson oddly overlooks:

• Christians have taken the "long view" on this. Roe was enacted 32 years ago. Since then, Christians have helped elect three presidents (and you could perhaps even include a fourth--Gerald Ford) whom they hoped would straighten out the mess with good appointments to the Supreme Court. And those presidents have given them John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy, and David Souter. Exactly just how long a view are we supposed to take now?

• "Unsophisticated" Christians have done the work of successfully convincing their fellow citizens on one issue--that the practice of partial birth abortion is an abomination. The entire American public overwhelmingly agrees and has passed laws to stop it. And it has amounted to squat. These laws have all come to naught. Why? Because they are continually overruled by federal courts on the grounds that they violate Roe. As it stands now, it doesn't matter if we convince 100% of the populace of our position. This is what everyone has been screaming about, and it's mind-boggling to me that Colson doesn't seem to get it.

• Who among "unsophisticated" Christians claimed that the problem developed overnight, or that one Supreme Court justice would change it? No, the problem has been going on for over 40 years. The Supreme Court foisted on America a "right" to abortion that most people were opposed to, based on another invented right of privacy. In the years since, America's preferences have adjusted to the new legality. But Colson is crazy if he doesn't think Roe led the way on America's acceptance of abortion. Perhaps Colson feels the need to minimize the importance of Roe because he actually helped put its author, Harry Blackmun, on the Supreme Court. Whatever the reason, don't lose sight of the fact that you are being actively encouraged to lower your expectations.

When this guy turns out to be another Anthony Kennedy, the evangelical/conservative pundits are going to try to tell us that President Bush couldn't have possibly forseen the disaster, and that we need to forgive the Republicans because they're still the only chance we've got. But I'm not going to be buying it--and you'll be a fool if you do.

More Conservative Reaction To Roberts

From Charles Krauthammer:

John Roberts is obviously a brilliant lawyer with a history of attachment to conservative administrations. On constitutional matters, however, he is a tabula rasa. He's been an advocate advancing his clients' opinion and interests. That tells us little. And in just two years as a circuit court judge he's made no great, or even important, pronouncements. Nor does Roberts have significant speeches or law review articles to his name. If he has a judicial philosophy, we don't know it. Nor does he -- having told the Senate Judiciary Committee in 2003 ``I think I'd have to say that I don't have an overarching, uniform philosophy."

...My guess? He upholds Roe, purely for reasons of precedent. And very quietly.

Randy Barnett, Boston University law professor:

But what sort of Justice will Judge Roberts make? I have no idea. I have never met him, so all I have to go on is his public record--a record of enormous accomplishment. But so far as I know, we know nothing about what he stands for apart from the fact that he is undoubtedly politically conservative. Is he an originalist? We don't know. Is he a majoritarian conservative like Robert Bork? We don't know. Would he find any limits on the enumerated powers of Congress? We don't know. Would he have ruled with the majority in Kelo? We don't know.

What is important is not that we don't know, but why we don't know any of this or anything else about the sort of justice that John Roberts will be, other than a very smart one. I am not concerned with his policy preferences, which I assume, from all accounts, are generally conservative, but with how he thinks a Supreme Court justice should go about interpreting a written constitution. In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy. As a result, we simply have no idea what to expect from him other than "well-crafted" opinions, and are unlikely to find out. Perhaps some previously expressed view will emerge from the confirmation process. If so, I very much look forward to reading it.

...Should Judge Roberts be confirmed? From what I now know, absolutely. He is well within the range of Presidential picks that are entitled to Senate confirmation. This was the President's choice to make, after all, not mine. But with someone like Judge McConnell we would have known what we were getting, for better or worse. With Judge Roberts, we can only sit and wait...and hope for the best.

He who has ears, let him hear. Because conservative (and evangelical leaders) were stepping over each other in their rush to proclaim Roberts the Best Nominee in the History of Civilization, it's not likely you are going to get an honest reappraisal of him now that we've had a few days for the silly euphoria to wear off. They committed themselves to him based on nothing more than a few years of service to Ronald Reagan and some assurances that Roberts is smart and nice, and would look foolish backtracking now.

But when they tell you that Roberts is just the kind of nominee we've been waiting for, a strict constructionist who will not legislate from the bench, ask them one simple question: "Oh really? How do you know that? What makes you say that?"

The disturbing thing is--they have no answer. Seriously. Try it yourself. All they're doing is keeping their fingers crossed, just like you and I.

Oh, By The Way....

...it turns out that John Roberts has also actually never been a member of the conservative Federalist Society.

But he really is conservative. Really. We just know he is.

A Souter Coming To Call?

Anyone who fancies himself a conservative needs to carefully read this article before blindly following the Bush Administration over the John Roberts cliff. It was written last week, before Roberts was nominated.

The parallels between the Souter fiasco and the cheerleading we're hearing for Roberts are eerie. George W. Bush is not of the same stripe as his father; he's proven that much. But still one wonders what he's thinking when we ponder the fact that nobody knows this guy's judicial philosophy. Indeed, Roberts says he doesn't have one.

In his 1996 political autobiography "Combat: Twelve Years in the U.S. Senate," [liberal Republican Senator Warren] Rudman....wrote that he was convinced Souter would vote to uphold Roe v. Wade just by listening to Souter's confirmation hearing testimony before the Senate in 1990.

"I thought that throughout his testimony, he had given clues to anyone who would listen, that neither as a believer in stare decisis (the Latin term for judicial respect for precedent), nor as a compassionate human being, was he likely to vote against Roe," Rudman wrote in his book.

Rudman also revealed a behind-the-scenes strategy that the Bush administration used to make it appear Souter would side with the pro-life community.

"I suspected that the president was less concerned with how his nominee eventually voted on Roe than that he or she be nominated without a fight," Rudman explained.

Rudman also questioned President George H. W. Bush's commitment to the pro-life movement. "Earlier in his career, Bush had been pro-choice; then he embraced the pro-life cause when he attached himself to Ronald Reagan, but I doubted that his original feelings had changed," Rudman wrote.

While Rudman claimed he did not know how Souter would rule on Roe v. Wade, he was confident the justice would not disappoint abortion rights supporters. "[B]ecause of his belief in stare decisis," Rudman asserted, "he would never vote to overturn the decision, knowing what turmoil that would cause in our society."

Stare decisis, by the way, is another way of saying something "is the settled law of the land."

Let The Celebration Continue

Christianity Today reports this quote from John Roberts' confirmation hearing testimony for his appointment to the D.C. Circuit:

I don't know if that's a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, 'I'm an originalist, I'm a textualist, I'm a literalist, or this or that.' I just don't feel comfortable with any of those particular labels.

Yes, that's the last thing we need is someone with a comprehensive philosophy about constitutional interpretation (in other words, a comprehensive philosophy about how he should do his job). We need somebody who doesn't have some philosophy they're always coming back to. Somebody like Sandra Day O'Connor, who would rule one way one day and another the next based on nothing more than the mood of the moment.

Oh, it just keeps getting better!

Roe Ruckus

A new poll shows that 74% of Americans think that it's appropriate to question John Roberts on his view of abortion. Whether or not it's appropriate, however, I think the question is largely irrelevant.

I'm not all that interested in Roberts' personal view of abortion. It might be interesting in that it would tell me some things about him as a man, but it's not all that important for his job.

Why not? Because the only thing that matters on the Supreme Court is what his view of the Constitution is. The proper question is not what he thinks of abortion, but rather if he thinks abortion is included in the Constitution as a right.

From my perspective, it would be infinitely more preferable to have a justice who personally likes abortion but recognizes that it is not a right enshrined in the Constitution than it would be to have a justice who personally thinks abortion is a moral outrage but believes it's a guaranteed right under the Constitution. And a savvy pro-abort would prefer to have the guy who personally hates it but believes it's a constitutional right. Because all that matters is how the nominee would rule.

For all the wailing and gnashing of teeth from the abortionistas, even if the Supreme Court were to overrule Roe v. Wade tomorrow, it's unlikely that abortion would be made illegal anywhere any time soon. Pro-lifers would still have the hard work ahead of convincing their fellow citizens that it ought to be made illegal again through the legislatures. That will be no easy task in a culture in which most people have either had an abortion, paid for one, or are close to someone who has. All overruling Roe would do is return the question back to the political process, where it belonged all along. It would simply take the issue of abortion out of the realm of judicial edict and return it to the regulation of the people.

So for my own part, I have no more than a passing interest in John Roberts' personal views on abortion. I have a great interest in is his views on what the Constitution does or doesn't say about abortion. Anything else simply blurs the real issue. A real originalist, someone who believes in the Constitution as written cannot honestly support Roe v. Wade, whatever his personal view on abortion. Even most honest liberal legal scholars will admit this.

Whether Roberts believes Roe v. Wade is bad constitutional law means everything and will tell us a great deal about his method of interpreting and applying the Constitution. Whether Roberts personally believes abortion is right or wrong might be interesting, but tells us nothing about what kind of justice he will be.

Let's Get This Party Started

A smattering of opinions from notable conservatives on John Roberts. See if these don't make you jump up and cheer the way Hugh Hewitt does!

Fred Barnes:

More than any decision in Bush's second term, conservatives around the country have been focused on what he'd do when faced with a Supreme Court vacancy. Their hope was for a demonstrably conservative nominee with a streak of daring. In Roberts, they didn't get one, at least from all appearances.

...Social conservatives were hoping for more. No doubt they'll line up in support of Roberts when Democrats like Schumer and groups such as People for the American Way begin to attack him. But they dream of the day when there are five votes on the court to reverse the 1973 Roe v. Wade decision, which legalized abortion. Now there are only three. Is Roberts likely to join a anti-Roe bloc on the court? Probably not.

Bill Kristol:

It's true that Roberts is a Rehnquist, not a Scalia or a Thomas. He'll be a little more incremental, a little more cautious, than some of us rabid constitutionalists will sometimes like.

Constitutional attorney Douglas Kmiec:

John Roberts is Bill Brennan. No, no. (Don't worry.) Not in terms of liberal ideology, but in the splendid gifts he brings to the Court. Like the late Justice William Brennan, John Roberts is a very likeable man.

...There is a good deal of nonsense already circulating that John Roberts will just carry to the Court a political agenda to reverse Roe and the like. John Roberts is neither pro-life nor pro-abortion; he is pro-democracy — a uniquely American democracy under a rule of law.

The editors of National Review:

Roberts’s views on the hot-button issues that come before the Supreme Court are unknown. But by all accounts, he has a brilliant legal mind, a judicious temperament, and generally conservative views. He will, almost certainly, be an improvement on his predecessor.

Quinn Hillyer:

He's just too solid, too respected, too well credentialed, and too judicious to give much ammunition to the character assassins of the Left. And while many of us conservatives were sort of itching for somebody conservative enough to force a real hard fight but strong enough to assure victory and thus utterly demoralize the Left, the president realized that such a fight would be bad for the country.

U.C. Berkeley law professor John C. Yoo:

He's the type of person that business conservatives and judicial-restraint conservatives will like but the social conservatives may not like. What the social conservatives want is someone who will overturn Roe. v. Wade and change the court's direction on privacy. But he represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port.

Who's excited! Hooray!!

Annie Get Your Gun

Coulter is going to take a lot of hits from the cheerleaders for her skepticism on Roberts. But isn't she only asking the questions the rest would be asking if they had any understanding of the core issues and the history of these nominations?

All the usual suspects are doing an end-zone dance, from the National Review crowd to Republican-Shill-in-Chief Hugh Hewitt. They're wetting themselves asserting that Bush has "hit a home run." But one thing they all share in common is an absolute lack of ability to tell us anything about his judicial philosophy. Is it really asking too much in the wake of O'Connor and Souter for the president to nominate someone with a clear judicial philosophy?

The Amen Corner is saying that Roberts is just an excellent, excellent choice. Now, he's no ideologue, they caution. He's not going to "slash and burn his way through an opinion" like Scalia does. But he's conservative nonetheless.

But what does this mean, exactly? Are Thomas and Scalia considered "ideologues" even by people on the right because they believe the meaning of the text of the Constitution ought to be what governs decisions? And if Roberts isn't one of them, then what meaning does he think should govern decisions? It's kinda like being pregnant: either you are or you aren't. You cannot be a semi-originalist. Either the text governs, or the opinion of the judge does. If it's not the text, it's not originalism. If that is "ideological," so be it.

They talk about Roberts' intellect, his integrity, his humor, and his ability as a litigator. But still nobody is addressing the only question that matters: what is his approach to interpreting and applying the Constitution?

Coulter is going to get pummeled hard by the rah-rah chorus for demanding answers to these questions. And perhaps Roberts will turn out to be a wonderful choice. But in a world where David Souter freely roams, shouldn't the cheerleaders be embarrassed that they aren't asking these questions?

Souter Redux?

We're about 18 hours into the Roberts nomination, and the one thing I'm still not hearing anything about is his judicial philosophy, which is ultimately all that really matters.

Everyone agrees that he's a good guy, and we know he has two small children. Obviously he's smart. But what's his view of the Constitution, and of the judiciary's role in interpreting it? Why don't we hear anything about the most important issue?

Ann Coulter is issuing a much-needed caveat (though she would probably characterize it as being much stronger than a mere caveat):

So all we know about him for sure is that he can't dance and he probably doesn't know who Jay-Z is. Other than that, he is a blank slate. Tabula rasa. Big zippo. Nada. Oh, yeah...we also know he's argued cases before the Supreme Court. Big deal; so has Larry Fynt's attorney.

But unfortunately, other than that that, we don’t know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever.

...It means absolutely nothing that NARAL and Planned Parenthood attack him: They also attacked Sandra Day O’Connor, Anthony Kennedy and David Hackett Souter.

The only way a supreme court nominee could win the approval of NARAL and Planned Parenthood would be to actually perform an abortion during his confirmation hearing, live, on camera, and preferably a partial birth one....

...If a smart and accomplished person goes this long without expressing an opinion, they'd better be pursuing the Miss America title.

Assurances from the administration that he's conservative are not enough. Having the media tell me he's conservative is not enough (since they think Sandra Day O'Connor is conservative). Knowledge that he's a good person isn't enough. I want to hear some reasoning, see some rulings, and hear some judicial philosophy pronto.

Even if he turns out to be excellent, why should we have to wonder? As Coulter says:

We also have a majority in the House, state legislatures, state governorships, and have won five of the last seven presidential elections — seven of the last ten!

We're the Harlem Globetrotters now - why do we have to play the Washington Generals every week?

Conservatism is sweeping the nation, we have a fully functioning alternative media, we’re ticked off and ready to avenge Robert Bork...and Bush nominates a Rorschach blot.

Even as they are losing voters, Democrats don’t hesitate to nominate reliable left-wing lunatics like Ruth Bader Ginsberg to lifetime sinecures on the High Court. And the vast majority of Americans loathe her views.

As I’ve said before, if a majority of Americans agreed with liberals on abortion, gay marriage, pornography, criminals’ rights, and property rights –liberals wouldn’t need the Supreme Court to give them everything they want through invented “constitutional” rights invisible to everyone but People For the American Way.

I just don't understand why we have to slink around as if our true views are unworthy of the Supreme Court. They're not, as election after election keeps showing.

I won't give up on Roberts until I have enough information to understand him. But it's proving very difficult to find--and it oughtn't be that way.

The Enemy Of My Enemy

From NARAL's emergency email last night following the announcement of John Roberts as the new Supreme Court nominee:

In a devastating move, George W. Bush has nominated John Roberts to replace Justice O'Connor's swing vote on the U.S. Supreme Court. By nominating John Roberts, George Bush has issued a slap in the face to every American who values personal privacy and a woman's right to choose.

I'm still doing my homework on him, but judging from NARAL's shrill reaction, he sounds like my kind of guy!

Thanks But No Thanks?

ABC News is reporting that the White House called Edith Clement this afternoon to tell her she's not the nominee.

Should be an interesting evening.

Which Edith Ends Up In The Bunker?

Now that it has been announced that President Bush will name his new Supreme Court nominee tonight, speculation is settling on the two Ediths: Edith Clement and Edith Jones, both of the Fifth Circuit Court of Appeals.

From what I've been able to pick up about Clement today, I've become convinced that she'd turn out to be a lousy choice. She has "David Souter" written all over her. Evidently, she has mostly practiced maritime law, so she has a sparse paper trail on hot-button issues. This, of course, makes her more easily confirmable than other nominees. It also radically ratchets up the chance that she becomes another Souter or Kennedy. Claims that she's a "federalist" mean little; remember, Sandra Day O'Connor is considered by many to be a staunch "federalist" as well.

A far better (though more difficult to confirm) choice would be Edith Jones. Her conservative, originalist bearings are much more well-documented. We'll see if the Bush Administration (already having evidently caved into the ridiculous "must-nominate-a-woman" affirmative action mindset) will have the guts to nominate a good woman.

Veteran pro-life philosopher and activist Hadley Arkes well describes the dilemma the Bush Administration faces with Clement (though he is willing to support her nomination):

I would vouch for Joy Clement myself, and I would vouch for Edith Jones. But as I commend Joy Clement, I open myself to these searching questions from friends who have suffered the lessons of experience: If we know little, really, about her philosophy or jural principles, how do know that she will not alter when she is suddenly showered with acclaim from the law schools at Harvard and Columbia? Will she not be lured as she is praised in measures ever grander, as a jurist of high rank, as she “grows” with each step ever more “moderate” and liberal? Those who commend her face the risk of joining the ranks of those who offered assurance on Kennedy and Souter, and lost forevermore their credibility.

But even more unsettling than that, the willingness to go with the candidate without a crisp, philosophic definition may mark the willingness to act, once again, within the framework defined by the other side: It begins with the reluctance to admit that we have ever discussed the matter of abortion with this candidate, or that she has any settled views on the subject. In other words, it begins with the premise that the right to abortion is firmly anchored as an orthodoxy; that those who would question it are unwilling to admit in public that they bear any such threatening doubts. The willingness to accept premises of that kind, as the framework for confirmation, may account for a Republican party that has brought forth as jurists the team of Stevens, O’Connor, Kennedy, and Souter.

For my part, I say "NO STEALTH CANDIDATES!" Have some guts, govern like you actually control all the elected branches of the federal government, and nominate someone who agrees with you. Let the liberals shriek. Who cares?

My prediction: It will be Clement. This administration has never fully understood what's at stake here. Bush's well-known willingness to nominate Alberto Gonzalez is proof enough of that. They'll go with the "confirmable candidate" under the justification that she'll have to be better than O'Connor, and they'll find themselves in the same position Poppy found himself in with Souter.

I hope I'm wrong. We'll see.

Strictly Speaking?

Rumor has it that President Bush could announce his Supreme Court nominee as early as today, and insiders are pointing to Judge Edith Clement of the Fifth Circuit Court of Appeals in New Orleans as the front-runner.

One of the frustrations I've had in this whole judicial process is the way words seem to be bandied about without any meaning. I don't know whether it's a failure of the media (or "legal insiders") to understand what the terms actually mean, or if there is simply a lot of obfuscating going on.

Clement is a case in point. I don't know anything about her yet. But a Washington Post story on her today hasn't helped me know her much better. Says the story:

Known as a conservative and a strict constructionist in legal circles, Clement also has eased fears among abortion-rights advocates. She has stated that the Supreme Court "has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion" and that "the law is settled in that regard."

It may not be the Post's fault. Everything they say may be true. But this description is contradictory nonsense. Either Clement is a "strict constructionist," or she believes that the Constitution contains a right to privacy in its so-called "eminations and pnumbras" that covers abortion. But she cannot have it both ways.

To be a strict constructionist is to deny that we can suddenly, 200-plus years down the road, find rights in the Constitution that no previous generation has ever found. And to believe that the Constitution implicitly contains a right to privacy that nobody discovered before the late 20th century is to jettison strict constructionism.

So which is it?

The only possibility for consistency between a strict constructionist approach and Clement's quotes from the article is if she was simply describing (without endorsing) the Supreme Court's current view. From the current Court's perspective, it is true that it "has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion." That is clearly the holding of the current Court. And in that sense, "the law is [currently] settled in that regard." So if she's merely describing the outlook of the current Court, there's no problem (though it would seem to be a bit of parsing worthy of Bill Clinton). But if she's describing her own views, she cannot by definition be a strict constructionist.

At the very least, more context for these remarks would be helpful.

When Sandra Day O'Connor is described as a "moderate conservative" and TIME Magazine can claim with a straight face (as it did a couple of weeks ago) that the current Court has no staunchly liberal voice on it, it's difficult to trust that the media knows or can correctly use the appropriate descriptive terms.

No Escape

To get to where we were working in Tanzania, we flew to Zurich, then on to Dar es Salaam, where we then took a bus 15 hours deep into the Tanzanian interior, near the Malawi border.

When we finally arrived there, we had to visit the district commissioner of Kyela to get her permission to do our work in her area. The office is off of a series of unpaved dirt roads, which we reached via 4x4.

While waiting for the commissioner to see us, I looked at the newspapers on a table outside the office. They were all written in Swahili, so I couldn't understand the words, but on the front cover of one of them was a picture of Tom Cruise and Katie Holmes.

Home Sweet Home

I've returned safely from Tanzania, and I thank you for your prayers. It was a tremendously fruitful trip, and I was blessed to not have so much as a sniffle the entire time.

It's a cliche you hear from everyone who takes a trip like this, but it's true: I can't believe what a great, easy life I have. I'll never look at a hot shower or a Dairy Queen Blizzard the same way again.

I'm glad President Bush didn't name a successor to Sandra Day O'Connor while I was gone. In Tanzania I was almost completely cut off from the news (though word of the London bombings did reach us), but the Supreme Court bloodbath is one that I didn't want to miss. Let the games begin!

Tonight In Jungleland

As I briefly alluded to the other day, tommorrow I'll be leaving for Tanzania, Africa where I'll be spending two weeks on a short-term missions trip. I'll have the tremendous opportunity to teach at a couple of pastors conferences and churches in the Kyela district in an effort to help and encourage them, and if you should be so led, I'd be grateful for your prayers.

If all goes well, I'll see you on Monday, July 18. Since I won't get to, be sure to light a bottle rocket for me.

The S.S. Minnow

This snippet, from an AP story on Justice O'Connor's retirement, may be the perfect summation of the futility of her reign (and it has been a "reign") on the Supreme Court:

Perhaps the best example of her influence [because of her "swing vote"] is the court's evolving stance on abortion. She distanced herself both from her three most conservative colleagues, who say there is no constitutional underpinning for a right to abortion, and from more liberal justices for whom the right is a given.

For liberals, this sort of wishy-washiness gives the illusion of depth. In reality, it is a dangerous combination of superficiality and narcissism.

Notice what it says above: she distanced herself from those who said there is no constitutional underpinning for a right to abortion and from those who said there is. Bill Clinton fans love to call this "nuance," but a better word for it is "nonsense." Either the right is in the Constitution or it isn't. If it's not there, the conservatives are right. If it is there, the liberals are right. But to say "maybe it is, maybe it isn't" is judicial cowardice. There's no middle ground between "is" and "isn't," despite O'Connor's flailing attempts to stake one out. That's why I actually have more respect for the consistent Court liberals like Stevens and Ginsburg than I do for O'Connor and her twin Anthony Kennedy. The liberals may be consistently wrong, but at least they've done the hard work of putting together something of a judicial philosophy.

Ultimately, history will view O'Connor as a rudderless ship upon stormy waters. Her jurisprudential legacy will be that she had no real jurisprudence. She had no compass, no substantive philosophy of law to ultimately guide her other than her own shifting personal opinion du jour--an opinion she held in such high esteem she was willing to impose it on the rest of us by fiat.

Ding Dong The Witch Is Dead

God does answer prayers.