REVIEW & OUTLOOK
No More Souters
The legacy of previous GOP Supreme Court picks.
As President Bush contemplates his Supreme Court nominee, one fact to keep in mind is that seven of the nine current Justices were appointed by Republican Presidents. If you want to understand why many of Mr. Bush's supporters are worried that he might nominate Attorney General Alberto Gonzales, this is the reason.
The objection isn't personal, and it isn't even about what Mr. Gonzales thinks; the concern is that virtually no one knows what he thinks. Mr. Gonzales's brief tenure on the Texas Supreme Court and his behind-closed-doors advice as chief White House counsel shed little light on what his judicial philosophy would be. And the record across recent decades is that justices who join the High Court without a clear and confident jurisprudence eventually become part of what has been a longstanding liberal majority.
Earl Warren, the father of modern judicial activism, was an Eisenhower appointee. So was William Brennan, who inherited Warren's mantle as the Court's liberal giant. Harry Blackmun, the author of Roe v. Wade, was a Nixon appointee.
The most liberal member of the current court, John Paul Stevens, was a Gerald Ford selection. David Souter, a George H. W. Bush and Warren Rudman choice, told the Senate he saw himself in the tradition of the great Justice John Harlan, who revered precedent. But on the court he's arguably been more of a liberal activist than either of Bill Clinton's two justices (Ruth Bader Ginsburg and Stephen Breyer).
Anthony Kennedy, selected by Reagan after Robert Bork was defeated, was said at the time to share 80% of Mr. Bork's philosophy. But Mr. Kennedy's jurisprudence has proven to be nearly as malleable as Justice Souter's, especially on the cultural and church-state issues where the Court has become the de facto national legislature.
By "liberal majority," by the way, we aren't merely referring to such issues as abortion or gay rights. Our objection to Roe and to Lawrence, the Texas sodomy case, isn't on the underlying policy. It is that the Court has hijacked those social disputes from democratic debate, preventing the kind of legislative compromises that would allow a social and political consensus to form. As federal appeals court Judge J. Harvie Wilkinson put it recently in an address at Duke University Law School, "In this sense, a restoration of [judicial] restraint assists the restoration of good will, because democratic governance gives everyone their say."
But there are many other issues on which the post-Warren justices have arrogated to themselves an almost legislative authority: overturning voter-passed Congressional term limits by 5-4, dictating racial and gender preferences in law, extending the Commerce Clause to encompass virtually any federal authority as in last term's Raich medical-marijuana decision, or expanding eminent domain in Kelo.
This is the history--which many view as political betrayal--that Mr. Bush has to confront as he makes his choice. It is one of the reasons that his own supporters aren't likely to accept another "stealth" candidate, such as Mr. Souter, whose main virtue would be an easy Senate confirmation.
And it is a reason that conservatives of all stripes have tended toward support for sitting appellate judges, who have a track record that provides a window into their legal reasoning. This is unfortunate in the sense that it tends to overlook Americans from other walks of life who might make fine justices, including politicians. But the stakes are so high, given the court's power in modern American society, that reducing the legal uncertainty is at a premium.
One implication is that, beyond questions of ethics and probity, Mr. Bush shouldn't worry much about a confirmation fight. It's worth remembering that the same liberal lobbying groups that now hail Mr. Souter as a great justice attacked him as a weird bachelor before he was confirmed.
We trust Mr. Bush will also ignore the advice from the Senate potentates he invited to the White House last week. These are some of the same Senators who've been savaging his highly qualified appellate nominees across the board. Harry Reid, the Senate Democratic leader, called yesterday for a "consensus candidate," by which he means someone who isn't the kind of judicial conservative that Mr. Bush promised he'd nominate in 2000 and again in 2004.
Most Senate Democrats are likely to fight any conservative nominee, no matter how distinguished, because they recall that after defeating two of Nixon's nominees (Haynsworth and Carswell) they got Blackmun, and after stopping Judge Bork and Douglas Ginsburg, they got Justice Kennedy. Mr. Bush probably can't avoid a fight unless he abandons the voters who elected him.
The fortunate news for Mr. Bush is that there are plenty of supremely qualified potential nominees. His wife, Laura, says he should pick a woman, and (unlike 25 years ago) there are plenty of distinguished female candidates around. One such is Edith Jones, of the Fifth Circuit, who was reportedly runner-up when the first President Bush chose Mr. Souter. Choosing her would be a pleasant historical irony.
But the larger goal should be to pick someone who has the intellectual conviction and firepower to help restore the High Court to its more restrained historical role. In a phrase, this means putting an end at last to the judicial legislating that was unleashed in the Warren era and that has slowed only on occasion ever since.
