European Stars and Stripes (Newspaper) - April 22, 1994, Darmstadt, Hesse Friday april �2, 1994 commentary the stars and stripes Page 13 supreme like a vaudevillian whose Prat Falls include slips on banana peels he stress in front of himself president Clin ton has done it again. Again he has diminished whom Ever he eventually nominates to fill supreme court vacancy by Adver Tising the tact that he or she is no the president s first Choice. Last powering . George f. Will time Mari Cuomo was this time Georg Mitchell was. Again the pres ident is allowing the selection process to become so protracted that All the ideological racial ethnic and sexual lobbies can work up robust sense of entitlement to the court seat. Given the importance of California and Florida and Texas to the presi Dent s re election plans he May be looking for someone with a hispanic sur name. That would please people who sub scribe to the theory or categorical representation that people can Only be properly represented by people of the same racial sexual or ethnic category. That theory is pernicious when applied to representative institutions and is doubly so when applied to judicial institutions. But perhaps the supreme court no longer is one. More important than the nomination of this or that person to the court is the fact that nominations of justices Are now Adays so important in this Republic. In a Republic Domestic policy is supposed Tobe made by elected representatives of the people. But As professor Lino Graglia of the University of Texas Law school says for decades now the supreme court has been America s most important govern mental institution. And the court s most important member during this period Justice William Brennan was Al though most americans would not have recognized his name the nation s mos important political Leader. The court has become the primary engine of government driven social change a super legislature doing what it believes other Legislatures because of their obtuseness or cowardice have neglected Todo. Court propelled change has encompassed matters of life and death capital punishment abortion the democratic process apportionment Public Security the rights of the criminally accused government Power to control vagrancy Public morality pornography nudity race busing the assignment of Chil Dren to schools on the basis of racer Eli Gion Banning school prayers and nativity scenes that threaten to establish Reli Gio Public discourse rewriting the Laws of libel and slander and so on. The nomination of 10 consecutive justices by Republican presidents had a negligible effect on such legislative uses of judicial Power. Why if politicians Are frequently tempted to venality writes Graglia the professional temptation of judges overestimation of one s competence is even More dangerous. Judges Are in fact among the least trustworthy of government officials. Thesis to be expected since they Are least subject to external the Constitution combined with a ethic of judicial self restraint should be such a restraint. However if judicial re View were exercised in a restrained Man Ner to overturn Only Laws clearly incompatible with the Constitution s text i would As Graglia says be exercised so infrequently As to be of Little and court nominations would not seems momentous. They Are momentous because much of today s judicial activism arises from the justices musings on two two word phrases in an amendment. The 14th that was ratified 79 years after the Constitution was. The phrases due process and equal Protection often Are empty vessels into which justices pour their social review based on those phrases frequently is merely applied moral philosophy that of the justices. Even if the justices Are Sublime moralists which they rarely Are what they Are doing cannot be called constitutional Law. They Are not rendering decisions based on a search for the Constitution determinate historical meaning. Rhetoric about the living Constitution is a License for justices to legislate. Hence president Clinton s enthusiasm for Mitchell a highly accomplished and partisan legislator. However it is preposterous to suggest that a politician would be a Novelty on the nation s highest Bench a it is said that Mitchell May want to be chief Justice and will Park himself at Heball Park As baseball commissioner until William Rehnquist retires. But will Rehnquist who seems Tobe in Good health and spirits step aside in time for Clinton to replace him wit Hmitchell an ideological opponent who in 1986 voted against confirming Reh quistas chief Justice meanwhile if Mitchell thinks Man aging democratic senators has been strenuous wait until he tries to get the 28 owners of major league teams to agree on the time of Day. That task is As the saying goes like herding c Wahington Post Nixon never could escape the watergate . Richard Nixon knew what his epitaph would say knew it would t be kind knew the futility of trying to rewrite he tried. Nixon s attempt to offer another face to history the final new Nixon seemed to be driving subplot to everything he did for the last 20 latest face Nixon showed the world As recently As last month in Moscow where he refused to be insulted by a snub from the Kremlin was a mellowed forgiving Nixon. I can look Back and say that the Day has indeed been splendid he wrote in 1990 in his eighth and most personal Post presidential Book in the Arena. The at peace with himself Nixon replaced the avenging Nixon. The new Nixon though admitted he would forever be known As the disgraced former his political career was marked by phrases that Cut like curses Tricky Dick third rate burglary enemies list your president is not a Crook expletive deleted a indicted Nixon is old 81. Another generation has take charge since he resigned As president in 1974 to avoid the certainty of impeachment. Only the old and the Middle aged know firsthand the loathing Nixon excited. As he Lay tuesday under a Hospital s intensive car and partially paralysed by a stroke suffered monday night the nation could reflect on his 48-year Swath through . White House said president Clinton who was a Newborn when Nixon won his first election Tele phoned the Rev. Billy Graham to ask him to convey his concerns to Nixon s children and grandchildren. In the Senate Republican Leader Bob Dole pause to note Nixon s difficulties. I be seen him in moments of Victory and defeat and i there is one thing i know that or. Nixon is he is a fighter Dole said. I look Forward to his recovery and the Benefit of his Wisdom for years to but Nixon had known forbears that history would recall his disgraces before it noted his Wisdom. There s no Appeal he once said. Still he had accomplished much on the rehabilitation route since brooding in Humilia Tion in san Clemente Calif. He had not yet returned the Way Herbert Hoover had to address a Republican National convention but he could take satisfaction knowing he was regarded Asa catch for Republican functions. Later this month he was scheduled As a special guest at a new York dinner for wealthy Republican supporters. Those who gave $100,000 were to get briefing and a private photo Opportunity with the old Man himself. He had exchanged pleasant words with Clinton be fore leaving for Russia last month on his 10th visit. Mike Feinsilber but there he made a surprising miscalculation meet ing with president Boris Yeltsin s political enemies including those who tried to oust him without first get Ting Yeltsin s blessings. Yeltsin cancelled their meetings and took away Nixon s bodyguards and limousine. Nixon turned the other Cheek and finally was received by russian legislators. He did not get Huffy As the old Nixon might have. For nearly half a Century As congressman senator vice president to Dwight d. Eisenhower Defeated candidate for governor of California and in 1960, loser to John f. Kennedy As Well As president for five years Nixon has been a contentious figure. As president he offered moderate Domestic proposals including a plan for a guaranteed annual in come to the poor and a surprising reversal of his anti communist foreign policy views. He bombed North Vietnam relentlessly but restored american relation with China and with both superpowers armed for Mutual destruction opened the Way for detente with the soviet Union. Watergate the attempt to undermine the investigation of a 1972 break in at democratic Headquarters -. Did Nixon in. Ever since he insisted that he did nothing other presidents had not also done. All administrations have sought to protect themselves fro the political a lout of scandals he protested one last time in his last Book. C Tho associated press
