Federal Judiciary

Those rules might be summarized as follows: (1) The president is entitled to an appointee who generally shares his views (i.e., a liberal president is entitled to a liberal justice; a conservative president is entitled to a conservative justice). (2) A nominee should be confirmed if he or she is professionally qualified and of generally good character. (3) The only exception to Rule Two is if the nominee?s views are provably and dangerously outside the mainstream of respectable thought.

By those rules, most people would probably conclude that Kagan is entitled to confirmation -- although I and others would argue that her restricted views on freedom of speech would disqualify her under Rule Three above.

But I want to make a different argument in this column: The current rules are obsolete, having come into being at a time when the federal courts had not yet been consciously politicized. Today, liberal presidents attempt to use their appointments with the intent to systematically undermine -- not uphold -- the Constitution. And they do so because their vision of an ever more statist America is inconsistent with the Constitution?s fundamental purpose: to limit the size and scope of government.

And note, this is not a case of ?both sides do it,? although it is true that conservative presidents look for nominees who will support original intent, strict construction, or other methods of trying to adhere to the Constitution.

But -- and this is paramount -- because liberal justices tend to seek to undermine the clear intent of the Constitution while conservative justices try to hold the line, the result is an inexorable march toward undermining the Constitution, with conservative appointments functioning as mere temporary holding actions.

As a conservative, I respect Republican senators who wish to venerate well-established traditions. But now, in the fateful spring of 2010, those senators need to consider which of conflicting traditions they intend to venerate. They can either venerate the traditional rules of confirmation or they can venerate the United States Constitution -- but not both.

I introduce, as Exhibit A on behalf of this choice, the provision in Obamacare that requires every American citizen to buy a health-insurance policy. When the case challenging the constitutionality of that provision reaches the Supreme Court (as about 20 state attorneys general are currently attempting to accomplish by litigation), the government will argue that it is permitted under the power of the federal government to regulate interstate commerce.

They will be forced to argue that the mere inaction of an individual American citizen is an act of interstate commerce worthy of regulation. If that proposition is upheld by the Supreme Court, then we will no longer have a limited government. The government would then have the power to outlaw and punish (by fine or prison term) any American?s decision not to exercise, not to vote, not to eat four servings of vegetables a day -- any human inaction would be sanctionable under the Interstate Commerce Clause -- and then adios liberty.

The president, who knows nominee Elena Kagan personally from their university days together, doubtlessly has chosen her in anticipation that she will uphold his legislation. Of course, the foregoing proposition cannot be proven because since 1987, when Robert Bork was ?borked? for having opinions, Supreme Court aspirants on both left and right have learned the dreadful lesson that never expressing an opinion in print, or even in an evening bull session, is the surest path to the high court.

So the senators are stuck with the problem of having no evidence on which to base a conclusion that Kagan will likely uphold Obamacare and thereby undermine the Constitution and our ancient rights, which it has vouchsafed.

Or, if that particular provision does not upset your sense of limited government, pick your poison. Obviously, from both evidence and first principles, the Left -- the statists -- abhor limited government and the Constitution that was enacted to assure it.

The senators can no longer hide behind the claim that they have no evidence from the mouth or pen of a nominee that the nominee is a threat to our Constitution. If the senators (Republican and Democratic) still venerate the Constitution, they are going to have to use their common sense.

Because if they don?t, you can damn well expect the voters will.

Any senator -- even with the most impeccable conservative credentials -- who votes for a nominee obviously selected to contract our liberties will face an outraged electorate in November, or in 2012 or 2014, whichever is their time in the tumbrel.

If senators continue to honor the rules of confirmation, then they are choosing to continue the march toward the end of constitutional, limited government and will deserve whatever demise the people have in store for them. There?s a doozy of a storm brewing -- and not only Democratic ships are vulnerable to sinking.

-- Tony Blankley is executive vice president of Edelman public relations in Washington. © 2010 Creators Syndicate, Inc.

Full post as published by Bench Memos - National Review Online on May 19, 2010 (boomark / email).