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Duncan won't fit court, this time

My column today. Apologies to blog readers for its similarities to my post of last Friday.

Washington puts on a spectacular fireworks display for the Fourth of July, but it saves its most violent eruptions for political battles.

One might be on the way soon, thanks to Sandra Day O'Connor's retirement announcement last week. ...

Not that explosions of red and blue are inevitable. It's possible for President Bush to nominate a successor who could satisfy enough moderates of both parties to win confirmation without a fiery fight in the Senate.

A Raleigh lawyer who grew up in High Point authors one of the state's liveliest Web logs. He doesn't use his name on the blog, so I won't identify him here, but an idea he posted Friday is worth discussing.

He urged Bush to nominate North Carolinian Allyson Duncan.

This attorney is an ardent Democrat, so his advice to a president he can't stand has to be evaluated for possible partisan spin. In other words, it's fair to suspect that he's just looking for the best result for his side. In the same way, when Vermont Sen. Patrick Leahy says Bush has a chance to choose a justice who can unite the court and the country, you can figure he wants one who will "unite" the court to the left of center.

Anyway, selecting Duncan, 53, would offer some political advantages for Bush and Republicans.

Bush already knows and respects her, having appointed her to the Fourth Circuit Court of Appeals bench in 2003. The nomination was supported by both North Carolina senators, Elizabeth Dole and, at the time, John Edwards. She was confirmed by a vote of 93-0.

Of course, Edwards' backing raises red flags for conservatives. True enough, Duncan is considered a judicial centrist -- much like O'Connor. She probably would not make the Supreme Court more conservative than it is now. It likely would remain subject to mood swings like last week's 5-4 rulings on both sides of the Ten Commandments question.

Yet, Duncan does offer outstanding professional qualifications, which include experience working for Justice Clarence Thomas when he headed the Equal Employment Opportunity Commission, a stint on the N.C. Court of Appeals and a term as president of the North Carolina Bar Association.

What's more, she’s an African American. There would be a lot of political capital to be gained from the nomination of the first black woman to the U.S. Supreme Court, and one who's a Republican to boot.

With African American women appointed as secretary of state and to the Supreme Court, the cries that Bush is unfriendly to minorities and women would continue to lose credibility.

Senate Democrats surely would have trouble mustering opposition to Duncan, who's personable as well as brilliant. (I interviewed her when she was running for a judicial post years ago and was very impressed.)

Liberal interest groups might be a different story because some of them are much more partisan even than most Democrats in Congress. I don't know how Duncan would rule on abortion cases, and that issue is the only litmus test for many organizations.

It's ironic that little is heard from far-left groups, like People for the American Way, when liberal justices issue rulings, such as in last week's eminent domain case, that expand government power at the expense of ordinary Americans. In a sharp dissent, O'Connor charged that "the government now has license to transfer property from those with fewer resources to those with more." Is that the "American way"?

O'Connor was joined by the court's most conservative justices, William Rehnquist, Antonin Scalia and Thomas.

Of course, many Republicans expect Bush to nominate a justice like one of those. The president himself has mentioned Scalia and Thomas as models for possible appointments.

Following through on that inclination will guarantee a conflagration in Washington. Democrats might not oppose so forcefully the nomination of a strong conservative to replace Rehnquist, who's also expected to retire soon, because that won't shift the court's balance.

The O'Connor seat is a different matter entirely.

For that reason, though, Bush ought to take the opportunity to pull the court substantially to the right. Doing so can be seen as part of the mandate he won in last year's election. Certainly, Republicans can argue that most voters were giving Bush free rein to place conservatives on the federal bench at all levels -- and in addition, that they elected a Republican Senate to confirm those judges.

The Democrats' only defense is to use their loudest exploding device -- the filibuster. But that's as likely to blow up in their faces as to win applause from the public.

With due respect to my friend in Raleigh, I'd advise Bush to nominate a reliable conservative and to save Duncan for another day -- for example, when one of the aging liberals, John Paul Stevens or Ruth Bader Ginsburg, departs.

In the meantime, get ready for the fireworks.

Comments (3)

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A.C. Lohr said:

I hope President Bush will nominate Judge J. Rogers Brown for the vacancy. She is very qualified, and I feel will be relativily conservative. {I'd really like to see him nominate Ann coulter: all the liberals would suffer fron strokes!}

Doug said:

Thanks, A.C.

Coulter writes better than most justices -- although Scalia's pretty good -- but she might be a bit light on legal experience.

John Burns said:

Man, that guy in Raleigh is brilliant!

Thanks, Doug.

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