WSJ.com - 'Give Up the Stealth Strategy'

For more than 40 years, it has been a primary goal of the conservative movement to restore the courts to their proper constitutional role. The strategy has been to elect presidents who will nominate judges who can be counted on to observe the constitutional limits of their own authority. Like previous Republican presidents, President Bush pledged to appoint "judges who will interpret the law, not make it."

So far, the strategy has failed. By a better than two-to-one margin, Supreme Court appointees of Republican presidents from Nixon to George H.W. Bush, like their Democratic counterparts, have freely departed from or ignored the text, logic and historical understanding of the Constitution whenever it suited their purposes.

Republican presidents are, therefore, forced to nominate "stealth candidates" whose views on basic principles of constitutional interpretation are unknown and may even be indeterminate. More often than not, these nominees, once confirmed, turn out to be highly responsive to elite or establishment opinion and unconstrained by any sense of the constitutional limits of their own authority.

Here is my proposal. To fill the seat being vacated by Sandra Day O'Connor, President Bush should nominate an intellectually distinguished and articulate jurist willing to set forth and defend a sound understanding of the constitutional limits of judicial power in the confirmation hearings. Give up the stealth strategy. Nominate someone whose record makes clear that he or she rejects the idea that judges are entitled to invent rights and manufacture constitutional doctrines to advance ideological goals. Let the nominee make the case for true constitutional government to the American people. Let us have a national debate over the role of the courts and the scope and limits of judicial power.

Judge Bork was indeed a distinguished, articulate and forceful defender of disciplined constitutional interpretation and limited judicial power. His rejection by the Senate was an injustice to him and a tragedy for the nation. It is important, however, not to read too much into his defeat or to draw from it false lessons. His arguments about the Constitution and the role of the courts were lost sight of in the massive campaign of disinformation and character-assassination waged against him, beginning with Teddy Kennedy's shameful speech claiming that "in Robert Bork's America blacks would be forced to sit at segregated lunch counters."
Judge Bork's efforts to get the debate back onto the plane of constitutional principle were largely unsupported. The Democrats controlled the Senate.

The Reagan administration, caught off guard by the representations of Sen. Joe Biden and others that a jurist of Judge Bork's stature would be treated with respect, lacked a plan for defending its nominee. Conservative legal scholars equipped to make the case for a true constitutionalist judge were scarce. The mainstream media -- fiercely hostile to Judge Bork -- had a near-monopoly on the means of disseminating information and shaping public opinion in a real-time political debate.

All of this has changed. Republicans hold the majority in the Senate (though admittedly three or four might as well be Democrats). The Bush administration knows that its nominee will face brutal attacks from people who will say anything and stop at virtually nothing to prevent his or her confirmation."

There's more and read it all if you would, but this will never happen. For all of his "Mission Accomplished" posturing...and I'm a Bush supporter but remain a realist...for all of his posturing, George Bush is not someone who wants a fight he is not certain of winning. This reflects the current American approach to anything unsure, unguaranteed, or potentially undoable.

We either win fast and clean or we don't play.