Noteworthy:

Frist Applauds Thompson’s New Role, July 6, 2005
After O'Connor; Wall Street Journal; July 5, 2005

“Let's all understand one thing; it's the President who has this privilege of picking whoever is going to be on the Supreme Court. That’s always been the case. That’s always going to be the case. You know, there's nothing in the Constitution that says that he has to consult with members of the United States Senate, but it's a courtesy. He will. He has been. But the courtesy should go both ways, and that is that his nominee should be treated fairly by both Democrats and Republicans, and I intend to see that that happens.

-Senator Hatch, Fox News, 7/6/05

Excerpts from past Supreme Court nomination hearings regarding proper scope of questioning….….

“[I]t is our responsibility as members of the [Judiciary] Committee … in advising and consenting, that we are challenged to ascertain the qualifications and the training and the experience and the judgment of a nominee, and that it is not our responsibility to test out the nominee’s particular philosophy, whether we agree or disagree …” Senator Kennedy, Committee On The Judiciary, U.S. Senate, Hearing, 7/19/67

Now:

“Every question is a legitimate question, period. … It is our obligation to ask the questions of the nominees about their judicial philosophies … To simply look at the rιsumι and say, ‘You’re fine,’ I don't buy that.” Senator Schumer, “Schumer Heats Up Supreme Grill,” New York Post, 7/6/05

Frist Applauds Thompson’s New Role

7/06/2005

WASHINGTON, D.C. – U.S. Senate Majority Leader Bill Frist, M.D. (R-TN) today applauded the White House’s announcement indicating that former Tennessee Senator Fred Thompson will play an important advisory role in the Supreme Court nomination process:

“I was honored to serve the state of Tennessee alongside Senator Fred Thompson. He has a profound understanding of Judiciary matters and is best known for his no-nonsense style. Fred is a well-respected leader admired on both sides of the political aisle as someone who is fair-minded and straight-forward. He is experienced in the ways of Washington and will undoubtedly provide valuable insight and counsel throughout the confirmation process. I believe his advice and guidance will help ensure that this nomination process is fair and consistent with previous Supreme Court nominations. Tennesseans are certainly proud of Fred Thompson’s service. And I believe whoever the President nominates will be well-served by Fred Thompson.”

-30-

After O'Connor

Wall Street Journal

July 5, 2005; Page A20

When President Reagan nominated Sandra Day O'Connor for the Supreme Court in 1981, former Texas Congresswoman Barbara Jordan, a Democrat, declared, "I don't know the lady, but if she's a good lawyer and believes in the Constitution, she'll be all right."

And so Justice O'Connor was confirmed unanimously as the 102nd Justice of the U.S. Supreme Court and the first woman to sit on the highest court in the land. Twenty-four years later, her retirement has set the judicial-appointment process in motion again for the first time in 11 years. On Friday President Bush called for a "dignified" confirmation process, meaning no repeat of the attempts to annihilate Robert Bork and Clarence Thomas. By way of contrast, Barbara Jordan's comment seems like a relic of a more gracious past.

Hours after Justice O'Connor's announcement, MoveOn.org was predicting a nominee who is "an extremist who will undermine the rights of individuals and families." Ted Kennedy was already ratcheting up his end-of-days rhetoric. Mr. Bush shouldn't let these threats deter him from choosing someone who will move the Court in the direction that voters have endorsed in two Presidential elections in a row.

Justice O'Connor is being hailed as the Court's "swing" Justice, but her legacy is more complicated. She has been a conservative on property rights and federalism, most recently in her Kelo dissent, where she took vigorous issue with the Court's extension of government's eminent domain power to include the taking of private property for private economic development. Replacing her with a "moderate" could actually mean a more liberal court on those issues.

Where she drifted left over the years -- and where her written opinions often sowed confusion -- was on social issues, notably church-state and racial matters. She focused more on the facts of a particular case than on determining bright-line rules that citizens could understand and legislatures could follow in the future. Before the Ten Commandments decision came down last month, Beltway wags joked that Justice O'Connor would find five of the 10 unconstitutional.