TIME TO GET REAL

Let's Have This Fight

By E. J. Dionne Jr.
Post
Saturday, July 9, 2005; A15

Should a temporary majority of 50.7 percent have control over the entire United States government? Should 49.3 percent of Americans have no influence over the nation's trajectory for the next generation?

Those are the stakes in the coming fight over the next Supreme Court justice. The much-maligned "outside groups" preparing for battle over President Bush's choice deserve credit for openly acknowledging this struggle for power.

Speaking from Denmark on Wednesday, Bush couldn't resist a knock at "special-interest groups" for exploiting the court debate on behalf of "their own fundraising capabilities." Okay, shame on them for raising all that money. But these groups -- left and right -- are fighting because they know how much this matters.

Paradoxically, that's why the White House is telling its right-wing allies to shut up. It's not just that the president is understandably peeved over conservative attacks on his attorney general, Alberto Gonzales. By being so vocal, the conservative groups are making clear what the administration would like to obscure: that this is a political and philosophical choice. We are deciding whether one ideological orientation will hold sway over all three branches of the federal government.

That means that the most important questions for senators to ask a nominee have to do with his or her philosophy. It is preposterous to rule such questions out of bounds. It's also hypocritical.

On the Sunday after Justice Sandra Day O'Connor announced her retirement, a front-page story in The Post noted that "the conservative movement has within its grasp the prize it has sought for more than 40 years: the control of all levers of the federal government." The story quoted Manuel Miranda, former counsel to Senate Republican leader Bill Frist, as declaring: "It is the moment of conclusion." That is an entirely forthright statement of the conservative hope.

But another story in the same edition quoted a planning document for Republicans on the Senate Judiciary Committee. It urged its side to avoid disclosing the "personal political views or legal thinking on any issue" of Bush's prospective nominee. The idea, as the story put it, was "to focus on qualifications rather than specific issues."

In other words, to win an ideological fight and take control of "all levers of the federal government," Republicans will insist that the battle has nothing to do with either power or ideology. The conservative "special-interest groups," no less than their liberal counterparts, have so far refused to play this misleading game.

Many Republicans are already saying that since Bush won the last election and since Republicans control the Senate, the president's choice should be confirmed with dispatch. But as former judge Robert Bork wrote recently in the Wall Street Journal, the Supreme Court "is the most powerful branch of government in domestic policy." Today's Republican majority, based on Bush's 50.7 percent of the vote in 2004, has no inherent right to exercise near-total control over that "most powerful branch."

Consider that since 1992 the Republican presidential vote has averaged only 44 percent and the vote for Republican House candidates has averaged roughly 48 percent. In 2004, with large margins in some of the largest states, Democratic candidates for the U.S. Senate received nearly 5 million more votes than their Republican opponents.

Those numbers don't change the fact that the GOP controls both the White House and the Senate. But they do suggest that the Republicans owe a decent respect to the opinions of the Democratic minority and have no mandate for pushing the court far to the right. Yes, this is a "political" assertion. But debates over Supreme Court nominations have been political throughout our history.

Those who say that politics, philosophy and "issues" shouldn't be part of the confirmation argument typically bemoan the prospect of a mean and dirty fight. But if the only legitimate way to stop a nominee is to discover or allege some personal shortcoming, all the incentives are in favor of nasty ad hominem attacks. If senators disagree profoundly with the philosophy of a nominee who happens to be a perfectly decent human being, isn't it far better that they wage their battle openly on philosophical and political grounds? Why force them to dig up bad stuff on a good person? Paradoxically, denying that politics matter in confirmation battles makes for uglier politics.

So, in the coming contest, I say hooray for those supposedly awful outside groups. Yes, they often behave in troublesome ways. But because these groups tell the truth about how important this battle is for the future of our country, I hope they ignore the high-minded scoldings they'll be getting and refuse to shut up.