- The Washington Times - Thursday, January 19, 2012

Name the last nominee to the Supreme Court by a Democratic president who turned out to be a judicial conservative. Maybe Justice Byron White, appointed by John F. Kennedy, who dissented from Roe v. Wade, but one largely draws a blank. Ask the converse, and the list is long and disheartening. Republican appointees formed the majority in Roe v. Wade (Harry Blackmun, William J. Brennan, Lewis F. Powell Jr., Potter Stewart and Warren E. Burger). Earl Warren was appointed by Dwight Eisenhower, John Paul Stephens by Gerald Ford. George H.W. Bush nominated David H. Souter, a blunder mitigated by the nomination of Clarence Thomas. Even conservative-by-instinct George W. Bush nominated Harriet Miers, who withdrew in the face of conservative indignation, in favor of Samuel Anthony Alito Jr.

Imagine what America would look like today if those nominees named by Republican presidents had been, instead, persons in the tradition of Antonin Scalia, Justice Thomas, John G. Roberts Jr. and Justice Alito. Imagine if we had today a reliable majority in favor of preserving marriage, defending the unborn, protecting religious freedom, preserving the proper role of states and upholding the Founders’ view of the Constitution.

Is it that Republican presidents are naive? Are they unaware of the decisive importance of the courts in either protecting or disrupting America’s social ecology, in deterring or advancing liberal social engineering? Are we less committed than Democrats to achieving our political objectives or just more susceptible to elite opinion?

Whatever the diagnosis of past errors, they must not be repeated in the next term. If a Republican is elected in 2012, he likely will have the opportunity to establish an enduring majority on the court. But if a Republican is elected president and appoints the likes of retired Justice Souter or even another Anthony M. Kennedy, this historic opportunity will be lost.

What sort of justice to the Supreme Court will Mitt Romney nominate - a Souter or a Thomas? A Miers or an Alito? A Kennedy or a Scalia? His record as governor of Massachusetts gives no cause for optimism.

Mr. Romney nominated 36 judges while governor, just nine of whom were Republicans. What he says of this record today is that the Massachusetts Governor’s Council had to confirm the nominees, and the members of the council were all Democrats. So his answer was to nominate persons palatable to Democrats.

But this all-Democratic Governor’s Council is effectively no different from the U.S. Senate. Even if, as I expect, Republicans gain a majority of the Senate this year, so long as Democrats have at least 41 members, they will be able to block by filibuster the confirmation of any Supreme Court nominee (or other federal judicial nomination, for that matter).

There is no evidence that Mr. Romney ever fought for a conservative nominee. There is no evidence that he tried to change the composition of the Governor’s Council. He passively accepted the reality that he needed to nominate four Democrats (or independents) for every Republican to the Massachusetts bench.

By comparison, how many Republicans has President Obama nominated to federal courts to placate the near majority in the Senate? Zero. This is because the left views the courts as the unelected engine for social change rather than a body tasked with upholding the Constitution. Get the judges, not the votes.

Mr. Romney told Fox News, “My test for the people that I nominated for judges was, would they follow the law.” But this is a nonstandard: What judge consciously does not follow the law? When a Massachusetts trial court judge found - and the appeals court affirmed - that junior high school boys have a right to wear fingernail polish and skirts to school, did they think they were not following the law? When Margaret H. Marshall, chief judge of the Massachusetts Supreme Judicial Court - nominated to the court by a Republican, Mitt Romney’s mentor, William Weld - found in the state’s Constitution a mandate for same-sex marriage, was she conscious of not following the law?

In 2006, when the Romney administration drove Catholic Charities of Boston out of providing adoption services because it held the organization must arrange same-sex adoptions, did it not think it was following the law? Of course it did - it just wasn’t willing to fight to do what was right. Two of Mr. Romney’s nominations for judgeships in Massachusetts, Stephen S. Abany and Marianne C. Hinkle, were well-known as advocates for special protections for homosexuals. What about the First Amendment’s protection of the free exercise of religion? What assurances did the governor receive that these nominees would “only follow the law”? Do their assurances still apply now that Mr. Romney is no longer in office?

The bottom line here is that it is not enough to nominate judges who say they will not legislate from the bench. Nearly all say that. The next Republican president must nominate and fight for unambiguously conservative jurists who will stand their ground. Mr. Romney has shown repeatedly that he is unwilling to do this. The left has no such inhibition.

If elected president, I will apply a three-part litmus test for jurists: They need to be well-qualified, ethical and constitutionalists. In addition, my nominees will have a clear record of supporting the principle that judges should in no way rely upon any foreign or international law for the purpose of interpreting the U.S. Constitution and laws.

When only judges of this kind are nominated, future generations will not look back on the coming four years and wonder, “Why did they fumble the best opportunity in a generation to return the federal courts and the third branch of government to their proper place in the constitutional order of government?” Numerous conservative leaders have said that I was the “go-to” guy in the Senate to push for conservative judges. This is a deeply felt cause for me - of both heart and head. We absolutely must get this right. Ambiguity and timidity won’t get it right, nor will it defeat the left’s judicial agenda. We need to uphold the Constitution with principles and conviction, not with moderation and vague hopes.

Rick Santorum, a former representative and senator from Pennsylvania, is a Republican candidate for president.

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