The alarming growth of judicial power in the past 40 years has worked particularly hard against the moral sensibilities of traditional conservatives. On issue after issue, judges have displaced elected representatives as the ultimate authority on whether and to what extent moral sentiments may be expressed in law.
Every Republican presidential nominee for nearly four decades has thought it necessary to make at least passing reference to judicial excess, but none has attacked the issue with piercing clarity, which is why the question remains constitutionally troubling but still unresolved in 2001.
The last presidential candidate who engaged the issue with gusto was Richard Nixon, who railed against the judiciary for being “soft” on criminals and imposing “forced busing” to desegregate schools. When he won the presidency in 1968, he vowed to appoint “strict constructionists,” but his subsequent choices for the Supreme Court failed the test.
Warren Burger and Lewis Powell, both fine men and instinctual conservatives, had no coherent judicial philosophy to challenge William Brennan’s theory of a “living” (that is, ever-changing) Constitution, which continued to dominate the Supreme Court long after Nixon was gone. One of Nixon’s appointments, Harry Blackmun, personified wretched judicial excess, and, with Burger’s and Powell’s support, gave us Roe v. Wade. The only consistently conservative appointment to the Supreme Court during the Nixon years was William Rehnquist, later elevated to chief justice by Ronald Reagan.
Gerald Ford’s sole Supreme Court appointment, John Paul Stevens, is arguably the most reliable liberal vote on the Court today. Reagan found a brilliant conservative champion in Antonin Scalia, but two of his other appointments, Sandra Day O’Connor and Anthony Kennedy, are primarily accommodationists who pride themselves on being “swing” votes. His nomination of Robert Bork, a man of noble character and extraordinary talent, was defeated by the Senate in one of the most shameful legislative gestures of the century.
Perhaps fearing a repeat of the Bork controversy, George H.W. Bush named David Souter, who delights liberal hearts. But all praise to Bush père for also naming Clarence Thomas, whose courage during his confirmation hearings surmounted venomous personal and political assaults.
We come now to 2001 and George W. Bush, who spoke admiringly of Scalia and Thomas during his campaign last year. That alone caused liberals to sharpen their spears, but the Supreme Court’s role in the Florida election imbroglio brought their war dance to a fevered pitch. (Never mind that seven justices refused to buy Al Gore’s theory of the case; his supporters will forever claim that the election was “stolen” by partisan Republican justices.) Democrats have made clear their intention to “bork” as many conservative nominees as they can.
Bush faces a ticklish dilemma. With 100 judicial vacancies in the federal courts right now and more coming weekly, he bears a responsibility to see that the work of the judiciary can get done. Bowing to liberal tyranny on nominations, however, will weaken Bush politically and destroy his ability to shape the judiciary.
Prudent accommodations will no doubt have to be made. But just as a president can afford to spend only so much political capital on judicial nominees, so he cannot treat judicial appointments as if they were endlessly negotiable line items in an appropriations bill. The power of the judiciary is such that sooner or later, he will have to fight for the sake of principle.
Skirmishes over lower-court nominations will surely occur, but these seldom galvanize public attention. Not so with Supreme Court vacancies, one or more of which will almost certainly occur in the near future. It is there that Bush will have to make his stand, and he should do so with the first vacancy by naming a candidate who can reasonably but forcefully make the case for judicial restraint.
The Bork tragedy need not be repeated, provided Bush is willing to take the issue to the American people. No Supreme Court nomination victory will come cheap under present circumstances, but the only one worth winning is one that promises to effect long-run change. Another Burger or Powell will not do the trick. Someone in the mold of Scalia and Thomas is worth fighting for, and Bush should not hesitate to tell the nation why.