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." We will stipulate that this argument, in the context of recent history, is hypocritical. We will further stipulate that, in the mouths of certain of its screechiest (and consequently most prominent) proponents, the argument approaches self-delusion-or worse. One Democratic partisan, Edward Lazarus, writing for the Washington Post op-ed page, has proposed that his party,s senators reject any Bush nominee whose ideas they find objectionable, whether or not those ideas are "extreme." Lazarus has a specific example in mind: Professor Michael McConnell, formerly of Harvard Law School and now at the University of Utah. McConnell happens to be the single most distinguished nominee Bush has so far forwarded to Capitol Hill. But McConnell also happens to be, Lazarus thinks we should know, an "avowed fundamentalist Christian." Bruce Ackerman of Yale Law School, for his part, still obsessed with the Florida recount, and convinced that the entire Bush presidency is constitutionally illegitimate, believes that the Senate is honor-bound to reject every White House judicial nomination, sight-unseen, as per se "extreme." Ackerman is an odd one to talk, since he has devoted his academic career to the lunatic theory that the Founders were acting illegally at the Constitutional Convention of 1787-and that the Civil War amendments extending civil rights to black people have never been properly ratified, and that the "real" Constitution resides not in its actual text, but somewhere out in the ether of public opinion. Later for you, professor. Later, too, for the notion that there is anything "extreme" about Republican jurists who question the constitutional validity of, say, government affirmative action programs maintained purely for purposes of racial "diversity." Later for the currently fashionable contention that an "already Republican-heavy" federal judiciary has made war on Congress in its haste to dispense "federalism" favors to the states. Most active federal judges, in fact, are Democrats. And most "federalism" cases, in fact, are resolved in favor of Congress against the states. One more time, then: Nearly every stated rationale we,ve heard for an organized, explicitly "ideological" challenge by Senate Democrats to President Bush,s pending appellate court (and future Supreme Court) nominees is nonsensical or dishonest or both. And yet: At the end of the day, we cannot find fault with the idea of taking nominees, judicial philosophy seriously. And we do find some fault with the traditional Republican response, now voiced by men like senator Orrin Hatch of Utah, who grumbles that legal philosophy "is not an appropriate measure of judicial qualifications." Why not, we wondered when the identical claim was advanced by Democrats during the second Clinton administration. And why not, we wonder still today. Surely a United States senator should demand that prospective federal appellate judges, to say nothing of Supreme Court nominees, thoroughly explain their understanding of constitutional law and jurisprudential practice-before such men and women are awarded lifetime tenure in a branch of government that now decides some of the most vexed and momentous issues in American public life. And surely a United States senator, consistent with his oath of office, should feel not just free, but positively obliged, to vote against any nominee with whose jurisprudential philosophy he disagrees. We would remind Senator Hatch and his fellow Republicans that Robert Bork,s undisputed eminence in the legal profession proved an ineffective defense against the Democratic smear that he was "ideologically" bizarre. If Senate Democrats decide to "Bork" one or a dozen Republican judicial nominees again this year, it should be the mission of the Republican party-and the Bush administration-to unveil the lies and argue the constitutional ideas and win on the merits. The nominees may still be defeated, which will be a pity. But the debate itself will nevertheless be perfectly appropriate, even necessary, in any constitutional democracy worthy of the name.
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