By Christopher G. Adamo

While many conservatives still hold out hope that President Bush will reverse the abominable condition of the nation’s courts, prospects look increasingly bleak. Sadly, the situation appears to be locked in its despicable state, not merely because of the autocratic nature of those presently serving on the bench, but more so as a result of the process by which new members ascend to such positions.

An assessment of the current confirmation process clearly indicates that few, if any, of the principals involved, whether the nominee themselves, the President, or the Senate, have a strong understanding as to how and why it was established. And with the current method of confirmation being so skewed, prospects for any worthwhile individual to actually make it to the bench appear less a matter of fitness than random chance.

Much discussion has transpired in recent weeks over the qualifications of John Roberts, President Bush’s nominee to replace retiring Supreme Court Justice Sandra O’Connor. Yet little of this discussion, particularly among the President’s partisan opponents, centers on Roberts’ actual eligibility, or lack thereof. Far worse is the fact that the Republicans, who ostensibly should be on the President’s side in this debate, appear as clueless as those on the left. And such has been the case for quite some time.

Roberts, they claim, is “squeaky clean,” not on the basis of an unshakable advocacy of constitutional principle, but rather because he does not appear to cross the ideological lines of precious Democrat “litmus tests.”

Throughout much of the Twentieth Century, judicial confirmations verged on being a mere formality, providing that nominees possessed the necessary legal credentials. But, as the battle over the nation’s governing ideology escalated, partisan Democrats began searching for any appearance of scandal or impropriety as a means of disqualifying nominees.

This situation degenerated during the 1987 confirmation hearings of Robert Bork, in which irrelevant events of Bork’s past were trumpeted as a means of discrediting him. But things reached an absolute low in the 1991 confirmation hearings of Clarence Thomas. During that sordid episode, baseless accusations of sexual harassment were invoked in last minute efforts to derail the nomination.

Thomas creditably acquitted himself of the slanderous charges and was subsequently confirmed. But, rather than standing immovably by his selection of Thomas as a sterling example of a judge who upheld the Constitution, a shell-shocked President Bush reacted to the controversy by attempting to find someone less inflammatory to fill the next vacant seat.

The President’s quest for common ground with his adversaries eventually turned up the seemingly mild-mannered David Souter. Consequently, America has since suffered dreadfully from Souter’s banalities, ineptitude, and outright liberal activism.

During the Clinton Administration, Republicans had an opportunity to return the confirmation process to its constitutional framework. Instead, they completely dropped the ball. Rather than holding Bill Clinton’s nominees to an immutable standard of recognizing of their constitutional role, and stressing the non-negotiable necessity of diligently upholding it as such, Republicans responded with the platitude “The President should be allowed his choice of nominees.”

While intending to shame the contentious Democrats for having degenerated previous confirmations into political catfights, such absurd and cowardly reasoning completely ignored the legitimate constitutional purpose of the confirmation process.

In truth, it was intended as a crucial check on the power of the Executive and Judicial branches, ensuring that the Senate would establish in office only those individuals who could be counted upon to adjudicate with integrity and fidelity to the principles of law and the constitutional foundations of the country. Thus the only worthy litmus test is a nominee’s faithfulness to the Constitution.

Granting a president “his choice of nominees,” reduces the judiciary to nothing more than a “spoil of victory” for the reigning president. From such a distorted process, no great potential for a worthwhile judiciary can be anticipated.

Thus, with only two of the Supreme Court justices being nominated by a Democrat President during the past thirty-seven years, the court is nonetheless overwhelmingly devoid of members who would fight to uphold the Constitution, though that premise is among the basic principles they have sworn to uphold.

The remaining seven seats were filled by Republican presidents. Yet only three members of the Court qualify to be there on the basis of their history of upholding the Constitution and Bill of Rights. Considering how much is presently at stake, this does not bode well for the future of the republic.