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By AndrewHyman Comments () / Email this page » / Leave a comment »

Bill Kristol has an interesting piece in the Weekly Standard titled, "Reversing the Bork Defeat; With a Republican Senate, President Bush has the Chance to Succeed Where Reagan Failed by Getting a Conservative Constitutionalist Confirmed to the Supreme Court." The first few paragraphs are below the fold.

ON OCTOBER 23, 1987--a day that lives in conservative infamy--Robert Bork's nomination to the Supreme Court was rejected by a Democratic Senate. Now, 18 years later, George W. Bush has the chance to reverse this defeat, and to begin to fulfill what has always been one of the core themes of modern American conservatism: the relinking of constitutional law and constitutional jurisprudence to the Constitution.

The restoration of constitutional government has been the one area in which modern conservatism has had the least success. From Ronald Reagan to George W. Bush, conservative economic policies have been (more or less) pursued, and, when pursued, have been vindicated. From Ronald Reagan to George W. Bush, conservative foreign policies based on American strength and American principles have been--when pursued--remarkably successful. One might even say that, in both economics and foreign policy, the degree of conservative success has been far greater than anyone would have imagined in 1980.

But in the area of constitutionalism, conservative goals have been thwarted, and the key moment of failure, from which conservative constitutionalism has never recovered, was the Bork defeat in 1987. For the last 18 years constitutional jurisprudence has continued to drift away from a sound constitutionalism based on the written Constitution and a proper deference to popular self-government in many areas of public life. Bork's defeat was both a cause and a symbol of this continued downward drift. Now, with one of the two swing votes on the Supreme Court stepping down, George W. Bush has a
chance to begin to make constitutional history, as he is certainly attempting to do in foreign policy and, to a lesser degree, in economic policy.

There are two pieces of good news to keep in mind as President Bush ponders his choice. The first is that, by contrast with the situation in 1987, the Senate has a Republican majority. The second is that President Bush can choose from among many, many well-qualified conservative constitutionalists. Although President Bush is understandably fond of and loyal to his attorney general Alberto Gonzales, it's simply a fact that Gonzales does not have the stature of several other possible candidates. I now believe that, though tempted, President Bush will leave his attorney general in his current office.

Kristol goes on to praise Michael McConnell, among others. However, I think there are plenty of reasons to be very concerned about a McConnell nomination. See here.

HT: How Appealing for linking to Kristol's article.