November 1, 2004 | National Review Online

Judicial Restraint

Republicans have, unfortunately, left the courts out of this election.

Yesterday’s sad news that Chief Justice William Rehnquist is probably much more ill than previously thought brings home on this Election Day that the federal judiciary–the issue second only to national security in significance–was never meaningfully engaged in the campaign.

Maddeningly, Republicans seem to lack confidence when it comes to campaigning on the federal courts. The Democrats and the mainstream media have successfully converted judicial nominations into a referendum on abortion politics. This is really too bad. It does not diminish the right to life to observe that it is infrequently litigated and that the judicial stamp on our society is far broader, and more intrusive, in scope.

It also reflects a strange skittishness on the part of Republicans regarding both their general position on abortion (which is much more popular than they — ensconced in their New York-Washington, D.C., fishbowl — appear to realize), and their capacity to persuasively connect the dots between the courts and many of the things voters most dislike.

Thus, Republicans have done a poor job conveying how critical it is to democracy that President Bush rather than Senator Kerry is trusted with the appointment power. The president is likely to choose judges who will be disposed to interpret existing law. If it appears new law might be appropriate to wrestle with emerging problems, Bush judges will instinctively defer to the political branches. Kerry judges are unlikely to be so restrained. They will feel freer to impose their own legislative prescriptions, and because they don't have to worry about answering to voters, those prescriptions may very well be out of sync (trending left) with what Americans would design if given the opportunity democracy is supposed to provide.

Congress, for example, would not have dared vote to permit al Qaeda terrorists, captured on the battlefield shooting at American troops and our allies, to use our own courts to challenge their detentions during wartime. But the Supreme Court, unworried about explaining such a vote to the spouses and parents of American soldiers, swung open the courthouse doors. And because the justices are not a legislature, because they do not hold hearings before voting to consider and regulate the fall-out of their rulings, we now have chaos — as federal judges, instead of Congress, grapple with whether enemy combatants get free lawyers, how much discovery information they should receive, what procedures these novel court proceedings should follow, and so on.

In hindsight, a good, strong Republican campaign on the judiciary would (a) have improved the GOP's overall electoral prospects, and (b) had a positive spillover effect in the next term of Congress, making it easier for a reelected President Bush to get his nominees through.

With the chief justice's apparently deteriorating health, all this is very relevant today, although it will no doubt get lost in the electoral hubbub. Once things subside (hopefully by late tonight) and we have a winner, the Supreme Court will dominate the post-election news.

A reelected President Bush will face a quick decision of immense importance. Ideally, Justice Antonin Scalia would be nominated to become chief justice. Such a bold move on behalf of so worthy a candidate, however, is very doubtful — and that's why the failure to make Democratic filibustering of nominees a cutting electoral issue amounts to such a missed opportunity.

As was the case when Associate Justice Rehnquist became chief justice in 1986, trying to name Justice Scalia (or, say, Justice Clarence Thomas) chief justice would require two confirmations. The first would be a bloody one to slide the sitting associate justice into the chief justice's seat. Democrats have spent four years blocking eminently qualified Bush nominees to the federal appellate courts based on hypothetical and concocted fear-mongering about purported closet agendas to roll back abortion and civil-rights jurisprudence. Given that, one can only imagine the brawl over Justice Scalia, who has a concrete record — and, regardless of whether one agrees with it, a thoughtful record — on these issues, and who, more to the point, has a judicial philosophy averse to a tyranny of unelected judges. This philosophy is anathema to many Democrats, as well as the media and the academy, for whom the courts are the route to the institution of their unpopular policy preferences.

Such a confirmation fight would only be the prelude to a second high-stakes battle — either to replace the associate justice who had successfully been elevated to chief justice, or to try again to get a new chief justice confirmed.

If Senator Kerry wins, the stakes are just as high and the landscape is similar. In search of a new chief justice, would he dramatically turn to Senator Hillary Rodham Clinton (whose 2008 or 2012 presidential run would now be a dubious proposition), or even to former President Bill Clinton, who is still plenty young enough to shape the Court's direction for decades to come? Would he attempt to move, say, Justice Ruth Bader Ginsberg or Justice Stephen Breyer into the top slot and then mount a second confirmation gambit for one of the country's many available, solidly credentialed liberal lawyers — Laurence Tribe? Alan Dershowitz? Jamie Gorelick?

In these calculations, a number of underreported factors come into play. To begin with, in a Kerry presidency, Republicans (or, at least, conservatives) will be happy that they did not succeed in some of the more dubious arguments that were made against the Democrat filibusters (which Ramesh Ponnuru described with characteristic insight in the December 22, 2003, issue of National Review).

It is not, for example, unconstitutional to filibuster judicial nominees. The filibuster is a political act that the Senate is empowered to carry out. If Democrats used it to block worthy nominees, as they surely did, they should have been made to pay the political price for it — by losing seats, having the president reelected, and having the issue so crystallized in the campaign that the election result was sensibly seen as a mandate to confirm the president's nominees. If the issue has not resonated with the electorate, it is because Republicans did not argue it strongly enough. A lack of will, however, is not a justification for contending that a political problem is somehow a constitutional problem.

There is also nothing improper about voting against confirmation over judicial philosophy. In a democracy, a judge who perceives the liberty to create new law necessarily constricts the prerogatives of the American people to choose, by the political process, how they wish to live. The Democrats have done their filibustering over particular policies they prefer (e.g., abortion, affirmative action, and gun control) rather than on the more fundamental issue of who should be making policy: the political branches answerable to voters, or the courts. It is unfortunate that Republicans have not explained this distinction well, but it is to the good that they did not succeed in clamping down on the filibuster, since they may need it in a Kerry administration.

That is because, regardless of some of the brave talk we have occasionally heard, Republicans will not be as lock-step in blocking activist judges as the Democrats were in blocking nominees disposed toward restraint. Indeed, assuming the likelihood that the Republicans hold the Senate, the next Judiciary Committee chairman, Arlen Specter of Pennsylvania, is a self-proclaimed moderate who has given indication that he sympathizes with the Democrats' Roe v. Wade litmus test, by which nominees who question the constitutional rationale of the landmark abortion decision stand little chance of being confirmed.

This is extremely unhealthy in two ways. First, it excludes many worthy candidates who — if they took the opportunity to be forthright rather than doing the ritual confirmation kabuki dance — would question the soundness of Roe even though they would faithfully follow it as Supreme Court precedent. Second, the reluctance to have a frank discussion about Roe in the confirmation process disserves the issue that far transcends Roe: If, as is usually the case, the Constitution does not clearly provide an answer to some policy question, who should decide it, the judges or the people?

In any event, with Senator Specter at the helm in the judiciary committee and a handful (perhaps more) of Republicans perfectly comfortable with activist judges favored by Democrats, the filibuster may be the only way in a Kerry administration that conservatives can thwart judicial nominees who would use their power to reduce democracy. In the case of an objection to one or another aspect of judicial philosophy, it is plainly more appropriate for the Senate to permit a qualified nominee to have an up-or-down vote, and to vote against the nominee if the objection is strong enough. Democracy itself, however, is well-worth filibustering over, making a campaign issue over, and deciding elections over.

Assuming Chief Justice Rehnquist is too ill to carry on, it may be too much to hope that a reelected President Bush, fresh from a very hard-fought victory, would choose to batten down for two confirmation slug-fests — especially with a Judiciary Committee that may be even less congenial than during his first term. Look for him to replace the chief justice with someone not currently on the Court, and pray that the administration is in the mood to fight for someone worthy.

— Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.