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Bush the Bandit and Desperado Dave

By Jonathan S. Cohn

IT'S NEAR DUSK as a lanky but ornery-looking bandit strolls into Dodge City. Peering through his bifocals, speaking prudently and always at the right junctures, he announces that he's brought a stranger to town--Desperado Dave--and that he's taking him to the courthouse.

The townsfolk are suspicious. They want to know just who this Desperado is.

But the bandit will have none of it. "That's none of your business," he sneers. "I say he's going there, and there ain't a darn thing you can do about it."

Slowly, our hero--the sheriff--emerges from the dark mist. "Not so fast, bandit. You're going to have to get past me first."

"Oh yeah?" the bandit cooly replies, slowly drawing his six-shooter. "Go ahead. Make my day."

HOLD ON TO YOUR SEATS, folks. This one's going to be a nail-biter. Our bandit, President Bush, has served up a pretty sinister plan for getting his man on the Supreme Court, and it looks like he's got our hero--the Senate--in a pretty tough spot.

Bush knows all too well that there's no way can he get a brash right-winger on the Court without a tough Senate fight. So he has instead appointed a judge so unknown even to the legal community that nobody can find a reason to oppose him.

Meanwhile, our hero has its back to the wall. It may have the constitutional power to block this nomination, but thanks to the bandit, it seems to lack the political power to actually do it.

You see, this bandit is pretty wily. He's asked the nominee, Judge David H. Souter '61, not to answer questions about specific issues, like abortion or affirmative action. Sure, the American Left says Bush is just trying to hide Souter's true colors, but enough voters seem to find Bush's request reasonable that it will be granted.

So Souter's record remains a mystery to the Senate. And it's just not that easy fighting a nominee with no record to fight.

PRO-CHOICE and civil rights groups, of course, are urging the Senate to block Souter's nomination if he won't go on the record supporting abortion rights or affirmative action. But pressuring Souter about abortion, as leading pro-choice activist Kate Michelman asked in a statement yesterday, will not defeat the nomination: if anything, it will play right into the bandit's hands.

After all, Souter could--and probably will--sidestep any specific questions merely by saying he needs to see the actual case, or by claiming that he has not really considered such issues at length. The voters have accepted that answer in past confirmation hearings, and the Senate would only look foolish by pressing the issue. What more could Bush ask?

And in all honesty, the Senate has no business blocking a Supreme Court nomination over one or two issues. Using such a litmus-test would not only be narrow-minded, but would also set a dangerous precedent. Future nominations could become deadlocked, and the court--which ostensibly exists to protect the minority--would slowly become a puppet of the majority-controlled legislature.

NONETHELESS, our hero shouldn't just walk away from this fight. The Senate should make Souter answer some questions: questions about his basic philosophies for constitutional interpretation, so that it may, in the words of one legal scholar, "police the outer limits" and "preserve the balance" of the court. That is how it stopped Robert Bork, and that is how it can stop David Souter, if such a rejection is called for.

Put simply, if Souter refuses to answer any relevant questions whatsoever about his judicial philosophy, then the Senate has every right to run him out of town. The voters might not stand for senatorial haggling over particular issues, but they would surely stand for genuine skepticism over a candidate who won't reveal even his most fundamental beliefs.

And if Souter does answer the questions, and challenges constitutional principles basic to most Americans today, then the Senate can just as forcefully reject his nomination. It is not so much a question of whether Souter opposes abortion and affirmative action. Instead, it is a question of whether Souter believes the Constitution guarantees a right to privacy, and a question of whether Souter believes the 14th Amendment binds the states to obey the Bill of Rights.

These are gurantees almost all Americans take for granted--guarantees that mark the outside bounds of acceptable constitutional interpretation in this day and age. The Senate nixed Bork because he didn't believe in such guarantees, and the Senate has every right to reject any future nominees who think the same way.

The only catch is that the Senate must move quickly and establish now what the standards for confirmation are going to be. Only by setting the criteria early can the Senate demand that Souter meet them. Otherwise, it will only be made to look foolish in front of the electorate, a most uncomfortable prospect with elections just weeks away.

WERE THIS a real Western, we would have no reason for worry-the hero always wins in the movies.

But this isn't Hollywood, and the ending in actuality could be far from happy. If the Senate botches up the gunfight, or--even worse--walks away, nothing will stand in the way of the bandit's sinister social agenda. And while the blood on movie sets is make believe, the blood and tears shed in this Western could be very real.

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