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Time to Fix the Court

June 6, 2005

As soon as the filibuster deal was announced, we began to hear the argument that President Bush should sustain the spirit of compromise by naming a moderate as his first selection to the Supreme Court. This suggestion, floated mostly by Democrats and faithfully carried in headlines and news reports as a neutral idea, boils down to this: It would be needlessly provocative for Bush to name a Supreme Court justice who reflects his party’s basic conviction that something is very wrong with the courts.

Here is the dominant Republican concern in two short sentences, as framed by blogger Mickey Kaus (a conservative Democrat, as it happens): “In the post-Warren era, judges . . . have almost uncheckable antidemocratic power. The Constitution has been durably politicized in a way that the Framers didn’t anticipate.” Burt Neuborne of New York University law school said recently that his fellow Democrats may be making a mistake by depending so heavily on judges to establish law without seeking true public support.

Well, that’s one way of putting it. Another is simply to say that the Democrats consistently rely on judges to impose legislation that they can’t get through the normal democratic process because majorities don’t want it. As a result, our politics and our courts have been deformed. A contempt for majorities keeps growing on the left, and contempt for the courts keeps rising on the right. Megan McArdle, the sensible blogger at Asymmetrical Information, says Republicans are determined to pack the court because “it is the only way Democrats have left them to undo the quasi-legislation that liberal judges wrote.”

Don’t blow it. Democrats try to frame their case by saying that Republicans are attacking the independence of the judiciary. Not true. They are attacking the process by which the policy preferences of the left are removed from the democratic process and written into the Constitution. The current moment may be the one historic opportunity that the Republicans will have to halt and reverse this severe damage to the courts. If they blow this chance out of timidity or bipartisan niceness, many of us will conclude that the GOP is not really a serious party entitled to our support.

The fact is that Republicans have colluded in the deforming of the Supreme Court by making so many woeful nominations to the bench. Before Clinton named Ruth Bader Ginsburg and Stephen Breyer, the Republicans had 10 straight Supreme Court picks. These selections came to very little, as the court moved further away from the actual text of the Constitution and closer to the role of a nine-member super-legislature that does whatever it likes. A sports executive who had 10 first-round draft choices and picked that badly would be out of a job very quickly.

The argument that Bush should pick centrists comes with a Ginsburg-Breyer attachment: Clinton picked moderates, so why can’t Bush? It’ s true that neither Ginsburg nor Breyer is a flamethrower, but the Democrats know that these justices are reliable votes on the left. The Republicans have no comparable expectations because they keep picking wobbly centrists who slide leftward.

The pick-a-moderate advice is a Democratic way of encouraging Republicans not to learn from these failures. Some of those poor Republican choices were made when the left was very strong in the Senate and the White House preferred not to fight. But the Republicans are now in a strong position.

The Republican court nominees should be people with the mental toughness to withstand the pressures to wobble. The leaders of the legal and media professions are “Living Constitution” types who dole out applause and honors to those who invent new constitutional rights and penalties to those who don’t. For his role in conjuring up the Roe decision out of emanations and penumbras, the lackluster Harry Blackmun is lionized and hailed as “a feminist icon” in a new book, Becoming Justice Blackmun, by Linda Greenhouse, the New York Times Supreme Court reporter. (“The Greenhouse effect,” referring to the warm reciprocity between court reporters and justices who meet with their approval, is named for her.) An example of the penalties for dissent is the treatment of Justice Antonin Scalia at Amherst College last year: The announcement that he would speak drew heated protests and written condemnation from 16 professors, including four who taught legal courses but didn’t believe that a Supreme Court justice they disagree with should be heard. Changing the court will be an uphill struggle. The naming of pleasant centrists won’t do the job.

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