News Release

August 6, 2002

Constitutional Corruption is at the Root of the Senate Stall on Bush Judicial Nominees

WASHINGTON -- As the Senate continues to stall in confirming President Bush's judicial nominees, the Cato Institute's Roger Pilon argues that the issues are much deeper than politics. It is the corruption of the Constitution itself that explains the current stall and the decision by Democrats on the Senate Judiciary Committee to impose an ideological litmus test on Bush's nominees.

In a new policy analysis, "How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees," Pilon, Cato's vice president for legal affairs and the director of Cato's Center for Constitutional Studies, outlines the history of that corruption, especially as it has led to the politicization of the Constitution and, as a result, of the judicial confirmation process as well.

"Judges today do set national policy far more than they used to -- and far more than the Constitution contemplates," Pilon writes. "In fact, it is because the original design has been corrupted, especially as it relates to the constraints the Constitution places on politics, that we have come to ideological litmus tests for judges."

Modern Democrats, and many Republicans as well, have come to view government as a service industry, with citizens as its customers, Pilon argues. That is a far cry from the Founders' conception of limited government. And it is fundamentally inconsistent with the Constitution.

Republicans will be unable to make a credible case for their nominees for the courts unless they come to grips with the constitutional revolution that took place during the New Deal. Today they come across as timid Democrats, Pilon says, arguing occasionally for limited government, but rarely sure how to do it. Pilon's study offers a roadmap for how to do the job.

At issue in the current confirmation battles are nothing less than constitutional government and the rule of law, Pilon concludes. For if everything is politics, nothing is law. These lower-court battles are just the warm-up, of course, for the next Supreme Court opening.

"How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees"