by Ken Bell

In sharp contradistinction to the hysterical rhetoric of yesterday’s New York Times editorial concerning the impending appointment of a new Supreme Court justice to replace the retiring Sandra Day O’Connor (see War of the Worlds immediately below), the Times’ Week In Review section today featured a more measured analysis by Jeffrey Rosen, law professor at George Washington University and legal editor for the New Republic (“So What’s the Right Pick?”).

Rosen eschews the hyperbole employed by such as David M. Shribman in “Showdown at the Supreme Court Corral” (“The O’Connor resignation is no longer the fire next time. Forget the 2006 midterm congressional election. Forget the 2008 presidential election. This is the most important political fight of our time.”) and instead poses an important question that is unlikely to be examined in depth by the “mainstream” media:

“When Justice Sandra Day O’Connor announced her intention to resign from the Supreme Court, President Bush promised to nominate a successor who would ‘faithfully interpret the Constitution.’

“He is widely expected to appoint a judicial conservative, but the crucial question for the country is what kind of judicial conservative.”

Unlike the incurious mainstream media, Rosen understands that “judicial conservatism, after all, is not a monolithic movement: It is a catchphrase for very different approaches to constitutional interpretation that often lead to dramatically different results in cases ranging from affirmative action to abortion and states’ rights.”

Agreeing reflexively with Howard Dean’s appraisal that all conservatives are of necessity ‘white, male, wealthy, racist religious fanatics’ or some similar variation on that theme, the MSM could hardly be expected to discern that the Republican majority is ideologically far more diverse than the simplistic left. Ideas, not “message”, matter more to Republicans, and the Republican coalition is therefore inevitably more nuanced.

Rosen discerns five distinct variants of judicial conservative”: “originalist conservatives”, “libertarian/constitution in exile conservatives”, “traditionalist conservatives”, “pragmatic conservatives”, and “deferential conservatives.” The categories are reasonably sound and the definitions Rosen offers for each are fair, though a bit “judgmental.” One might well quibble with his interpretations, but it’s only on occasion that he seems irrational – for instance, when he appears to characterize Justice Stephen Breyer as a pragmatic conservative. (This, by the way, is the category in which he places both O’Connor and Chief Justice William Rehnquist).

Most of what we will be hearing, reading and seeing over the next several weeks, perhaps months, as this “succession crisis” evolves, will be “a tale told by an idiot, full of sound and fury, signifying nothing.” Nearly all of it we can safely ignore, except for continually assessing the political impact of the rhetoric. But we would be wise to evaluate President Bush’s appointment in terms which are similar to, if not identical with, Mr. Rosen’s rubrics.