The Magazine

Judging Bush's Judges

Jul 16, 2001, Vol. 6, No. 41 • By DAVID TELL, FOR THE EDITORS
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FROM RECENT SCHOLARSHIP has emerged a remarkably complete picture of modern American legal politics at the moment of creation. We now know that in the 1980s, occupying the farthest-right outposts of human imagination, was a barbarian tribe of conservative "Republicans" led by a mythic figure called President Reagan. On the leftward frontiers, surviving maps from the period are curiously blank, for then as now, that territory had few acknowledged inhabitants. But in the vast, temperate central zones, we know that there lived a second tribe (indeed, an entirely separate species, Reagan,s Republicans having noticeably smaller hearts and craniums). These were the "moderates" or "Democrats." And it is clear from their sacred texts, published in the form of a daily newspaper called the New York Times, that theirs was a highly evolved civilization. They had a "living Constitution" that guaranteed women an unlimited right to kill their unborn children, for example.

Of course, it was for precisely this kind of mainstream thinking-though the two tribes were nominally partners in a unified federal government-that the conservative barbarians despised the Democrats. So one day President Reagan slyly proposed that a man named Bork be appointed to the federal government,s highest court of law. By dint of experience, intelligence, and accomplishment, Bork seemed a perfect candidate, and would ordinarily have been easily confirmed for the job. But a moderate senator named Ted Kennedy discovered that Bork had expressed reservations about substantive due-process jurisprudence under the flexible, living Constitution,s Fourteenth Amendment. Which meant that with Bork on the Supreme Court, as the elegantly understated Kennedy explained it, women would be slaughtered wholesale and civil rights for African Americans would be abolished.

Kennedy,s fellow moderates were alarmed, and quickly concluded that mere competence should no longer be sufficient qualification for service on the federal bench. Neither Reagan nor any other president enjoys a "celestial or constitutional mandate to impose his political views on a whole branch of government for a decade or more," the New York Times pointed out, "and the Senate labors under no duty to accept even a capable nominee whose views it disagrees with." Views like Bork,s were simply too "extreme," and though this suggestion drove Republicans fairly mad with rage, conscientious moderates felt they had little choice but to distort the would-be jurist,s public record, slander him personally, and thus destroy his nomination. Because, darn it all, the federal courts were really important.

Fascinating, isn,t it, that so little has changed across the decades? The federal courts have remained important, needless to say. And much the same battle about the composition of those courts has been waged-across much the same partisan and "ideological" divide-year after year after year.

True, for a while there, the specific arguments got turned upside down. In the mid-1990s, when Republicans several times threatened (but failed) to direct public attention to the philosophical character of President Clinton,s judicial appointments, Democrats were ostentatiously aghast-as if Robert Bork had never existed. They insisted, for one thing, that Clinton,s judges were uniformly and perfectly "moderate." They insisted, for another, that the GOP lacked standing to complain about those judges-Senate Republicans having voted unanimously to confirm the overwhelming majority of Clinton,s past court picks. And Democrats insisted, most vehemently, that what general convictions a prospective federal judge might have should be irrelevant in any case, legal expertise being all that matters. It is appropriate to "evaluate nominees on their professional qualifications," the Times allowed. Any deeper inquiry than that, however, would constitute a fundamental assault on the independence of the judicial branch.

But it turns out none of this was meant to be taken seriously. Once again in 2001, just as in 1987, we have a Republican president submitting judicial nominations to a Democratic Senate. So once again in 2001, just as in 1987, "moderates" everywhere feel themselves compelled to resist those nominations as best they can-and on philosophical grounds alone. George W. Bush plans a "speedy hard-right makeover of the nation,s federal courts," warns the New York Times, urging Tom Daschle and his colleagues to "use the filibuster, if necessary, to block extreme appointments." Democrat Charles Schumer of New York, chairman of a key Senate Judiciary subcommittee, promises to do just that. His party will "certainly" be justified, Schumer lately announces, in its rejection of any Bush nominee whose "views fall outside the mainstream."