By John Leo

Politics of the bench
Would Bush's Supreme Court picks make a difference?

The future makeup of the Supreme Court hasn't caught on as a major issue in the presidential race. One reason is that the media combed through George W. Bush's judicial selections in Texas without finding much to complain about. (The media don't worry much about potential Democratic nominees–all of them are presumed to be safe.) Texas elects its judges, but Bush picked four state Supreme Court judges to fill unexpired terms. He went for the conventional categories of "diversity"–one woman, one Hispanic-American, one judge who uses a wheelchair. All four said Bush hadn't asked their opinions on hot-button issues like abortion and affirmative action. In a controversial case involving parental notification on abortion, three of the four Bush appointees voted to uphold a girl's desire to have the abortion without informing her parents. "They have uniformly been chosen for quality. There has not been a litmus test. They are sort of middle of the road on the court," said William Powers, the dean of the University of Texas School of Law. Texas Lawyer analyzed the selections and came to the same conclusion.

All this is soothing to the left but apt to cause some gas pains on the right. Bush is by temperament and political inclination a moderate who dislikes confrontation and likes to think of himself as a unifier. Writing in the New Republic, Andrew Sullivan says he thinks Bush would pick moderate conservatives who would sail through committee hearings and bend this way and that way once on the court. Sullivan says, "These are exactly the kind of justices–David Souter, Anthony Kennedy, Sandra Day O'Connor–who give conservative imprimaturs to such landmark liberal rulings as Roe v. Wade and Romer v. Evans." (Romer overturned a Colorado state constitutional amendment banning the creation of a legally protected category for gays.)

Landmark liberal rulings. This is precisely the problem with Republican picks for the court. Before Clinton named Ruth Bader Ginsburg and Stephen Breyer, the Republicans had 10 straight selections, all explicitly chosen in the hope of turning the court away from making "landmark liberal rulings" that come out of the blue with no basis in the Constitution. They haven't.

When Justice William Brennan died, the Washington Post's Supreme Court reporter, Joan Biskupic, wrote an admiring obituary that contains the best short description of the philosophy behind "liberal landmark rulings." Brennan's vision, she wrote, "found the essential meaning of the Constitution not in the past but in contemporary life, prized individual rights beyond what was explicitly written in the text, and compelled him to reach out to right perceived wrongs."

Backward-looking nonactivists may look for the meaning of the Constitution in the text and previous rulings on the text, but Brennan found it in "contemporary life," discovering (or inventing) unsuspected new rights, shaping his personal version of the Constitution to redress wrongs that he felt judges must correct. The blunt way to say this is that he made it up as he went along, erasing the line between law and politics. Summing up what the court has become, Robert Bork wrote recently, "Constitutional law is useless to study and impossible to teach . . . what was within living memory an intellectual discipline is now politics, and a simplistic, highly partisan form of politics at that."

Why have 10 Republican nominees made so little headway against this trend? One reason is the legal world is dominated by the activist left. Enormous pressure is brought to bear on dissenters. Opinion at the law schools, which are increasingly devoted to freewheeling judicial activism, matters a lot to members of the judiciary. The American Bar Association is now a conventional liberal pressure group. The annual meeting of the Association of American Law Schools (AALS) presents "the full gamut of opinions from left to far left," said Charles Fried, a former solicitor general who is now a professor at Harvard Law School. One dean told the AALS meeting she would be reluctant to hire a professor opposed to abortion because she felt her faculty would be unwilling to interact with anyone who wasn't pro-choice. Yes, conformity is always less troublesome.

As a result of all this pressure, the system is set up to produce converts, ostensibly conservative judges who "grow" on the bench. The upshot is that Democratic presidents can be fairly sure of what they are getting when they name someone to the court. Republicans can't.

Breyer and Ginsburg, regarded as moderates, have taken a fairly hard line on the court. They haven't met a racial preference or quota they didn't like or a regulation on abortion that shouldn't be struck down. Comparably moderate Republican nominees are always in danger of leftward "growth." Andrew Sullivan thinks that if Bush wins, "the judicial activists gnashing their teeth in a few years time will be ideological conservatives, not dogmatic liberals." That will happen only if Bush wins and is careless or timid in his picks for the court. No more stealth candidates like Souter, please. And no more drifting O'Connors, either.