Liberals have begun using "mainstream conservative" as a compliment. Conservatives should be suspicious.
In the wake of Justice Sandra Day O'Connor's retirement, mostly unrepentant liberals -- along with a few conservatives who should know better -- rushed to brand the cowgirl a "mainstream conservative" or to demand a "mainstream conservative" nominee. They included Ralph Neas, Alan Colmes, George Will, and Senators Orrin Hatch, Harry Reid, Barbara Boxer, Joe Biden, Ted Kennedy, Dianne Feinstein, John Cornyn, and Barack Obama. What does this pattern mean?
If history is any guide, political contests over judicial nominees are rarely genuine jurisprudence debates. They're waged over labels. The use of "mainstream conservative," and its more odious ancestor "mainstream," opens up yet another front in the fight over the judiciary: the battle over language. When Ralph Neas, chief Borker and President of People for the American Way, terms Anthony Kennedy a "mainstream conservative," something's up.
No talking point shows the genesis of "mainstream" or "mainstream conservative." Yet its prevalence is undeniable. Even Gwen Ifill, PBS's Washington Week moderator, noted on a Washingtonpost.com chat last week that Democrats were applying the latter label to O'Connor.
And well before the current Court vacancy, "mainstream" was the liberals' favorite verbal weapon. It was universally used to tar Judge Robert H. Bork in 1987. His sin? His views were "out of the mainstream" of judicial thought. Opponents of William Rehnquist's becoming Chief Justice (among them Neas) wielded it in his 1986 hearings. Frustrated with the term, Sen. Barry Goldwater (R-Ariz.) turned it on Rehnquist's critics, "The accusers of Justice Rehnquist are themselves out of the mainstream of American values."
Politicians parroted the line during the judiciary fights this past winter and spring. Sen. Ted Kennedy, in his March 31 dedication speech for the John Adams Courthouse in Boston, denounced "radical, ideological individuals whose views are outside the mainstream of judicial thought." Sens. Chuck Schumer and Hillary Clinton similarly warned against nominees outside the "mainstream."
When pressed, Democrats are cagey about what "mainstream" actually means. In the July 4 Washington Post, Ted Kennedy emphasized that "picking from a list of mainstream lawyers and judges" is a consensus project. Feinstein told Fox News Sunday on July 3 that a mainstream conservative is "someone that really speaks for the great bulk of Americans."
By "mainstream" Democrats must mean more than mere consensus. Touting O'Connor's affirmative action and abortion decisions, the Philadelphia Inquirer lamented that Bush wouldn't nominate "someone just like her. And that's a tragedy for mainstream America."
To the abortion lobby, "mainstream" means pro-abortion. The NARAL e-mail that supporters can send to senators reads, "We deserve to know where nominees to the Supreme Court stand on such core mainstream values as privacy, personal freedom, and a woman's right to choose."
Barbara Boxer grouped "mainstream" with her two other main priorities. ''I urge the president and the Senate," she said July 1, "to ensure that her replacement reflects Justice O'Connor's judicial philosophy -- mainstream, pro-choice, and independent.''
In reality, Democrats' idea of the mainstream is wide of the mark. A Harris Poll released in March found the lowest national support for Roe v. Wade in 20 years -- a mere 52 percent. Eighty-six percent opposed laws permitting abortions in the third trimester, upon which national Democrats have stubbornly insisted. Despite reporting record-low support for abortion, the poll faced a virtual press blackout, earning only a mention on the Wall Street Journal website and a press release from the U.S. Conference of Catholic Bishops. Perhaps the press is interested in maintaining the fiction of the mainstream.
For some, the meaning of "mainstream" is a trickier dance. In his radio address last Saturday, Senate Minority Leader Harry Reid rejected any "knee-jerk conservative crusader who will march in lock-step to the tune of partisan pressure groups... not just a conservative, but an extreme conservative, someone out of the mainstream...." Who would he accept? Someone who would "make rulings with an open mind and a big heart."
Such refined legal philosophies are rich in code words and poor in meaning. What do these Senators mean? The staffs of Senators Obama, Kennedy, and Feinstein didn't return calls for clarification this week. Reid spokesman Jim Manley told TAS he wouldn't identify any current justices out of the "mainstream," but said Reid is looking for "someone who can fully protect the individual rights and freedoms of Americans, someone who can judge every case with an open mind and without a political agenda, [and] someone who won't side with the powerful." By the powerful, was Manley referring to the Kelo property seizure case? "I don't know that case. I'm not a lawyer."
"Mainstream" apparently means nothing to Reid and his staff. Like their version of the Constitution, it's just an empty bottle to be filled with their agenda and chucked at conservative jurists.
How the liberals frame the nominee and his qualifications for the bench could determine if a solid jurist receives a fair hearing in the Senate. Cornyn, Hatch, and George Will should be careful not to invoke the tainted "mainstream." Surrender it to the Democrats, and Americans will understand that by "mainstream," they mean unabashed liberalism.
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