THE BLOG
10/27/2005 02:18 pm ET Updated May 25, 2011

Stone Cold Dumb

Following the Miers fiasco, George W. Bush is in his weakest political position ever, yet Prof. Geoffrey R. Stone wants liberals to throw him a lifeline.

Instead of rallying the public behind liberal constitutionalist principles in areas such as workplace equality, consumer rights, environmental protections and privacy matters, Stone wants us to get behind right-wing candidates Michael McConnell and Harvie Wilkinson simply because they have "extraordinay [sic] qualifications."

This is politically foolish and substantively dangerous.

Politically, we have a golden opportunity to force Bush to nominate a truly impartial judge.

Of course in all likelihood Bush will try to appease his conservative base with an overt right-wing nominee. But there is a reason Bush has not yet chosen a right-winger with a paper trail for the Supreme Court: he doesn't believe he can win that fight.

He is worried they will be filibustered, and that he can't muster the votes for the "nuclear option" -- breaking Senate rules to end filibusters. If he wasn't worried about that scenario, he would have picked an overt right-winger by now.

Now that his base is forcing his hand, we can stop such a nominee on the Senate floor IF we Dems and liberals clearly articulate to the American people how such a nominee will harm their families and communities. Once we rally public opinion to our side, we will have the political capital to sustain filibusters indefinitely until Bush has no choice but to pick an impartial judge that respects core constitutional rights.

Substantively, Stone's faves should not be praised as "mainstream conservatives." Check out the PDF dossiers on McConnell and Wilkinson by the feminist group Legal Momentum (full disclosure: I had a hand in drafting those documents.)

As you will see, McConnell would squelch reproductive freedom and curtail religious liberty by shredding the principle of church-state separation. Wilkinson has a vendetta against affirmative action and equal pay for women and people of color. Both oppose equality for gays and lesbians.

Most importantly, both extol the 5-4 Court ruling that said our democratically elected Congress is not allowed to give domestic violence victims the right to sue their attackers in federal court. That decision was a huge victory for conservative judicial activism, as it constricts the public's ability to pass laws that protect their civil rights.

These views should not be shrugged off as "mainstream conservative." They are judicial views that will codify inequality, weaken liberty and inflict harm on Americans.

Stone, parroting right-wing talking points, claims that since we didn't win the 2004 election, that we shouldn't even try to prevent the Supreme Court from moving further to the Right. However, the Constitution does not say that democracy goes in the freezer between elections. It says the President nominates and the Senate consents. Both of those branches of government are designed to respond to public will. A citizen's right to engage other citizens and their elected representatives lives on after Election Day, even if Stone chooses not to fully exercise it.