This skepticism is mysterious to me. Surely, nothing in the Constitution prohibits individual senators from consulting with advisors in developing questions to put to a nominee. Why is opening that circle of advice to the public any different? At the end of the day, it's still the individual senator who is choosing to ask the question. Criticize it for being an empty and meaningless publicity stunt, to be sure, but there doesn't seem to be a legitimate constitutional objection to this innovation.

"we believe it shouldn't only be Senators that get to ask the questions this time around. We want the American people to have a voice. We want to know what you care about the most."

In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

No, the most noteworthy aspect of the "abode predictor" is simply the way it turns on its head one of the standard tropes of American political thinking, namely that "Beltway thinking" and true conservatism stand in antithetical opposition to each other. We will all have to learn a new stock of truisms if it turns out that inside-the-Beltway thinking is the surest guarantor of conservative rigor, while such unspoiled and authentic locales as small-town Minnesota, rural New Hampshire and the ranching sections of Arizona are dangerous sources of squishiness, compromise and modernism.

"Americans who believe in individual rights — that's nearly all of us — should concentrate on Roberts' views on something even more important: the right to privacy. If you examine carefully the rantings of those on the extremist edge of the religious right, you'll see that they make an underlying argument even more troubling than their absolutist premise that abortion is murder: They argue that there is no constitutional right to privacy."

If that antediluvian view holds sway, American women will find themselves living under something akin to Shariah, the Quranic law that restricts women's rights. And men, too, will find their private lives severely curtailed by government interference. If Americans have no right to privacy, the government can roam freely about your bedroom, telling you how and when to have sex and whether you can use a contraceptive.

It's all part of the glorious messiness of our constitutional democracy. In the end, the jurisprudential journey of John Roberts may depend less on any all-encompassing judicial philosophy or secret political platform than on the balances that he strikes, from one case to the next, in resolving a dilemma identified by the great Judge Learned Hand:

 

"Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward vagaries of popular assemblies.... For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

Britishness, for all its faults, was once seen around the world as a distinctly valuable and admirable quality. Decency, respect for law, intelligence without so much bloody abstraction, propriety, manners: These were the attributes invariably attributed to the Brits. Since Powell's speech, however, the British have turned their backs on all of that. Their popular culture is vastly more coarse than America's. Worse, they have seized the kingdom's leading institutions and scraped out the best traditions and customs like so many tumors.

 

"We allowed our patriotism to be turned into a joke, wise sexual restraint to be mocked as prudery, our families to be defamed as nests of violence, loathing, and abuse, our literature to be tossed aside as so much garbage, and our church turned into a department of the Social Security system," writes Peter Hitchens in his wonderful book, The Abolition of Britain.

 

All of this came about because the British lost confidence in themselves. Confidence in the greatness of your nation is a wonderful bulwark against those who'd like to turn it into something else. When William of Wykeham founded New College at Oxford in 1379, he planted a grove of oak trees on the assumption that the school's beams might need to be replaced in about 500 years. That's a sign of cultural confidence. The founder of the Guinness beer dynasty signed a 9,000-year lease for his brewery.

 

Now a person can move to this country and complain that the British flag is oppressive, and the Brits don't have the national spine to laugh the complaint away. Britain has given in to the "besetting temptation of all politics to concern itself with the immediate present at the expense of the future."

 

Now the future is here. Islamism is filling the yawning vacuum created by multiculturalism. England is producing homegrown suicide bombers who are supremely confident in a very non-British future for Britain. For years, the police here have looked the other way as citizens have slaughtered their wives and daughters in "honor killings." To clamp down would be "insensitive" to cultural differences. They've looked the other way, as jihadi ideologues have turned London into the Comintern of Muslim extremism. In other words, they opened their minds so wide, their brains fell out. And now the Thames, like the Tiber, is foaming with much blood.

John Roberts has been working in the maelstrom of public life for three decades; at any moment he could have tripped up or been betrayed. He has navigated those waters and emerged with the respect of those who know him, Republican and Democrat, conservative and liberal.

But despite being rebuked by his colleagues for pressing inappropriate questions on Mr. Roberts when he was a federal appeals court nominee, Mr. Schumer has signaled he is going to revisit the same line of questioning. "It is vital that Judge Roberts answer a wide range of questions openly, honestly, and fully in the coming months," the senator said.

 

* * *

 

Indeed, as Justice Ginsburg observed in her dissent in Republican Party of Minnesota v. White, "In the context of the Federal system, how a prospective nominee for the bench would resolve particular contentious issues would certainly be 'of interest' to the President and the Senate. But in accord with a longstanding norm, every member of this Court declined to furnish such information to the Senate, and presumably to the President as well."

 

This long-standing norm was followed by no less a liberal icon than Thurgood Marshall (and we here at the Sun revere him no less than any liberal). Marshall, during his confirmation hearing in 1967, responded to a senator's question regarding the Fifth Amendment this way: "I do not think you want me to be in a position of giving you a statement on the Fifth Amendment and then, if I am confirmed, sit on the Court and when a Fifth Amendment case comes up, I will have to disqualify myself."

 

Mr. Schumer may want to do away with this long-standing norm. He may care more about his own political agenda than the independence of the judiciary. But there is something odd about Mr. Schumer's quest to do this in the name of protecting the court, something that rings basically false - sort of like Senator Kerry trying to wrap himself in the aura of the military at a time when he was counseling retreat in the war. What Mr. Schumer is doing is going up against constitutional bedrock, the idea of separated powers, and it will be illuminating to see whether he gets away with it

Bush likes to pull surprises, but only on matters of timing. George Bush hides in plain sight, a tactic that works here, since everyone always assumes the game is all about misdirection. Bush said he wanted to choose justices in the Scalia-Thomas tradition. Why would anyone think that he wouldn’t follow through on that promise?

The candidate also "will meet the highest standards of intellect, character and ability and will pledge to faithfully interpret the Constitution and laws of our country." 

"Our nation deserves, and I will select, a Supreme Court justice that Americans can be proud of," he said. 

"I want to put to rest the speculation and unfounded rumors of my imminent retirement.  

 

I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits."

The nature of a litigation lottery is that the availability of potentially huge damages justify bringing a meritless claim, so long as there is some small chance that the combination of an outlier judge and an outlier jury will produce a jackpot that compensates for the risk that the judge/jury combination will get it right.

 

For example . . . it does little good that Ford won thirteen straight cases regarding the design of its Ford Explorer if in the fourteenth case, the jury votes 9-to-3 to award $368.6 million in damages (reduced by the court to "only" $150 million on Sep. 3). Thirteen out of fourteen juries did not award excessive damages, which is what the empirical studies measure—but the average case awarded over $10 million. And this last number actually understates the real economic costs to American defendants given the substantial sums it costs a Ford to defend a trial.

 

When defendants are facing a Russian roulette game where the plaintiffs get to fire multiple shots at them, it's irrelevant to note that the median chamber of the gun is empty.

The leading lesson from the Bork experience, and also the Thomas experience, is that because the Supreme Court has arrogated most of cultural politics to itself, confirmations to it have become the most brutal alleyway of American politics. The "rules" that most players seem to assume call for an early nomination, delayed hearings, and a loftily detached nominee; but, however venerable in origin and laudable in theory these rules may be, the left has formulated its playbook around them, making them operationally part of the left's own strategy. There is no reason for President Bush to play by them.

Liberals and conservatives, Wilkinson has written, differ about "the place of compassion in the democratic process." The human condition is prey to myriad misfortunes. "Victims of social circumstances, however, are altogether distinct from victims of another's violation of a specific legal duty. It is the job of the democratic process to ameliorate the effects of the former. It is the judiciary's charge to rectify the latter."

Dismay about abuses of judicial discretion drives some conservatives into a misguided quest for a jurisprudential holy grail -- a theory of constitutional reasoning that will virtually expunge discretion from judging. This goal is chimeric.

Construing the Constitution should begin with what the document's pertinent language meant to those who wrote and ratified it. But construing can rarely end there. Historians continue to deepen our understanding of how varied and occasionally contradictory were the intentions of the framers and ratifiers. History always informs constitutional deliberations; it rarely is dispositive.

* * *

After receiving his degree at the University of Virginia law school but before teaching there, he clerked for a family friend, Supreme Court Justice Lewis F. Powell Jr., the embodiment of mainstream conservative jurisprudence. Wilkinson was nominated by President Ronald Reagan to the U.S. Court of Appeals for the 4th Circuit. Concerning the most important and vexing subject of constitutional law -- racial equality -- Wilkinson wrote a justly praised book, "From Brown to Bakke: The Supreme Court and School Integration, 1954-1978." In 1987, in a case concerning a "minority set-aside" program for Richmond contractors, he wrote the 4th Circuit's opinion demonstrating how carefully circumscribed "race-conscience remedies" must be in order to be compatible with the Constitution's guarantee of equal protection of the laws. In 1989 the Supreme Court endorsed the 4th Circuit's ruling. The opinion affirming Wilkinson's reasoning was written by Sandra Day O'Connor.

 

The nomination of Wilkinson to fill her seat would be a splendidly clarifying act. Any senator's claim that Wilkinson is an "extremist" would be risible, and itself evidence of extremism.

I have begun to hear anecdotal reports of insurance companies using low offers of judgment effectively in small soft tissue injury cases. In those small cases and particularly with lawyers who handle high volumes of small cases, the intimidation factor provided by the new OCGA Section 9-11-68 can be substantial.

 

At the same time, I am not seeing or hearing of much use of offers of judgment by insurers in larger cases or in dealing with well established trial lawyers. In meaty cases with serious injuries or wrongful death, I am hearing rumblings that insurers and defense firms are concerned that the offer of judgment statute could cost them money, so they aren't using it much at this point.

 

At the same time, I am beginning to hear reports of strong, well-established plaintiffs' lawyers making well-reasoned offers of judgment early in cases, and coupling them with demands for prejudgment interest under the Unliquidated Damages Interest Act.

Walter E. Dellinger III, former acting solicitor general of the United States, told a Heritage Foundation audience Thursday that Rehnquist's retirement is a certainty.

"The emerging model is a board comprised of one insider - the CEO - who knows everything about the corporation and who has a keen interest in its future, and 10 independent directors selected precisely because they have no affiliation with or, interest in, the business or its fate.  

 

That is an odd group to help develop a business strategy and seems likely to function largely as a monitor, with strategy being left to the CEO and subordinates outside the board's presence."

People of every income level and social background are made worse off when the rule of law dissolves into a fog of uncertainties created by "nuanced" judicial fiats. Frivolous lawsuits flourish in these uncertainties, crippling businesses, destroying jobs, and driving up the cost of medical care to cover both the lawsuits and the defensive medicine to ward off lawsuits.

TAE: Moral values are important to you. What do you think is the best way to teach them to children?

 

JONES: I think religion is the best way. If you are responsible to God, no matter what religion you are in, you learn moral standards that transcend the dictates of the law. You show your kids fundamentally what is right or wrong.

TAE: Should tort reform help curb frivolous lawsuits?

 

JONES: I think that is a very important goal. There was a recent $900 judgment against two teenagers in a Colorado suburb who baked cookies and dropped them off on the doorsteps of their neighbors at night out of sheer kindness. One of the neighbors claimed she got so frightened that there were intruders at her door that she had to go to the hospital the next day. And she sued these girls. Now, if that's not a sign of a system in distress, I don't know what is.

TAE: You have stated that the values imposed by the Supreme Court have contributed to the decay of our society. Could you give us some examples?

 

JONES: The philosophical underpinnings of our government are the contract theory which says that we are a self-governing people, and the historical view that in order to be properly self-governing we must have a moral foundation. The Supreme Court's porno-graphy cases, the cases involving free speech that included those where people were allowed to spout the "F" word in public venues, the criminal procedure decisions which allowed many, many guilty people to go free because of rights that justices discovered in the Constitution for the first time in its two centuries of existence are examples of the overstepping of bounds. In several notable areas the Supreme Court has been operating on fatally flawed philosophical premises not well tested in actual society.

 

TAE: You recently authored an opinion in the McCorvey v. Hill case that got a fair amount of attention. This is the case that attempted and failed to reopen the Roe v. Wade abortion ruling. Your opinion highlighted the tension between the Supreme Court's ruling and modern scientific knowledge about what happens to babies and to women during abortion. 

 

JONES: I was trying to point out that by Constitutionalizing the right to abortion, the Supreme Court had removed from the ordinary political processes any debate in which facts about prenatal advances, or health effects on women, could be heard and taken into account. In fact, the Court's exceptionally broad ruling removed fact-finding processes even from the Court's own debates. Facts, I concluded, no longer matter to the Supreme Court in certain cases.

There's another candidate who would be even harder to demonize: Judge Janice Rogers Brown. She's a conservative with a long record on California's Supreme Court and had been one of several judges being filibustered by Senate Democrats. But after being confirmed last month, she now sits on the U.S. Circuit Court of Appeals for the District of Columbia, a court that has produced more than its share of Supreme Court justices. Thanks to the deal seven Democrats hammered out with seven Republicans she is, by definition, not "extreme" enough that her nomination would constitute "extraordinary circumstances" justifying a filibuster.

 

Anyway, filibustering Judge Brown would also block the first black woman from taking a seat on the high court. Never underestimate the power of "a first" in getting Supreme Court nominee through the Senate. Justice O'Connor, the first woman to sit on the high court, sailed through 99-0 in 1981. Five years later, President Reagan sent up Antonin Scalia to be the first Italian-American to sit on the highest court in the land. He is now the bane of the left, but in 1986, he won confirmation 98-0.

To see why, assume that O'Connor is replaced by a strong conservative, such as Judge J. Michael Luttig of the 4th Circuit Court of Appeals. The balance on the court would change, but only somewhat. Kennedy (for whom I clerked) would remain as a key swing vote.

Kennedy often votes with the more liberal justices to form a liberal majority in major cases. He has voted to uphold Roe vs. Wade, and he wrote the opinions that struck down sodomy laws and invalidated the death penalty for juveniles. All these decisions would remain intact.

Of course, there are cases when the company's products do cause harm, and lawsuits are legitimate. But the legal system makes filing a frivolous suit too tempting.

 

* * *

 

Tort reform is an economic growth issue. Unless the doors of the nation's courtrooms are sealed against the legal hucksters who are draining America's job providers, then we can expect fewer jobs.

After preparing for months for a battle to replace Chief Justice William H. Rehnquist, conservative and liberal groups were caught by surprise yesterday and immediately began reworking their strategies for a fight that they believe will be even more ferocious and carry higher stakes.

 

Activists on both sides said the retirement of Justice Sandra Day O'Connor, who has been a crucial swing vote compared with Rehnquist's reliable conservatism, gives conservatives an unexpected chance to shift the court rightward. Liberals, anxious to prevent such a move, said they must pour more money and energy into a campaign to educate Americans about the role O'Connor played and the importance of replacing her with a fellow centrist.

For the first time since President Bush took office in 2001, he is reasonably assured that he will be able to name two new Justices to the Supreme Court. Given his widely reported desire to give a Court seat to his longtime aide, now Attorney General Alberto Gonzales, one of the nominations very likely will be his. But perhaps not the first seat, the one to be vacated by Justice Sandra Day O'Connor.

 

***

 

The White House and Justice Department -- and the outside groups that will be allowed to have influence over the process -- can now definitely shift to a two-nomination strategy. It provides a truly unique political -- and jurisprudential -- opportunity. Gonzales, about whom the most conservative commentators and advocates have had some genuine doubt, can be given one of the seats and still there would be the opportunity to pick someone more reliably conservative for the other seat. That could turn the tide, ideologically, on the Court.

Gonzales is probably marginally more conservative than O'Connor, but not enough to commend him to the President's staff and followers now as her successor. The O'Connor seat, so centrally important because of the role she personally has come to play, is likely to be seen in the political community as the more meaningful opportunity for "regime change" at the Supreme Court.

The seat of the Chief Justice, of course, is more important symbolically. But given Rehnquist's conservatism, not a whole lot would be gained by the President's political followers if someone conservative were named when that seat becomes available.

The bottom line of this sort of speculation: O'Connor's seat goes to someone other than Gonzales, and he is kept on hold for the next seat, the Chief Justice's. The President would still be able to reward Gonzales in the way that he seems to wish, and would able to make a major political statement by naming the first Hispanic-American to the Court -- and, no less, to the Chief Justiceship.

Doubtless the potential for two nominations gives the current administration the ability to shape the face of the Court for many years into the future.

“This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor. It has been a great privilege indeed to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.”