Commentary

Toward the Restoration of Law

This article is reprinted, with permission, from the Los Angeles and San Francisco Daily Journal, a publication for West Coast lawyers.

With President Bush’s January 7 renomination of the 31 judicial candidates who failed to win confirmation during the last session of the Senate, the unprecedented battle for the federal courts that unfolded in that Democratic-controlled session began anew. Initial media reaction was political, focusing on the two candidates who were defeated in committee — District Court Judge Charles W. Pickering Sr. and Texas Supreme Court Justice Priscilla R. Owen, both nominated for the Fifth Circuit. But the underlying issues run much deeper, going to the question whether we can any longer distinguish law from politics. Witness the threat by several Democrats, now in the minority, to filibuster nominees the Senate Judiciary Committee votes out who fail the “ideological litmus test” Democrats erected in the last session.

New York Sen. Charles Schumer has led the charge to insert ideology into the confirmation process. Writing in the New York Times just after Democrats took control of the Senate in 2001, he called explicitly for examining the ideology of judicial nominees to ensure that they reflect “the core values held by most of our country’s citizens.” Of particular concern to him were the Supreme Court’s recent 5-4 decisions “that constrain Congressional power.”

Schumer’s call, echoed thereafter by other Democrats and reflected in subsequent Judiciary Committee hearings, led to the confirmation stall we saw in the last session, especially for appellate court nominees. A comparison of appellate court confirmation rates for the first two years of recent administrations speaks volumes about that: Reagan and Bush Sr., 95 percent; Clinton, 86 percent; Bush Jr., 48 percent, and that counts two Democratic holdovers renominated early on by Bush as a gesture to the Democrats. Ten of Bush’s 2001 appellate court nominees have yet to have even a hearing. And we’re not talking here about political hacks but about some of the most qualified lawyers in the nation.

The problem for Democrats, of course, is just that. These nominees come from the school that knows the difference between law and politics. They understand that a judge is sworn to apply the law, not make it, even if doing so runs against “the core values held by most of our country’s citizens.” Tell that to Democratic Party elder Joseph Califano Jr., writing in the Washington Post two months after Schumer’s call to arms. Speaking sympathetically of judges “setting national policy,” Califano says that we’ve all learned “that what can’t be won in the legislative or executive may be achievable in a federal district court where a sympathetic judge sits.” There, in a nutshell, is law as politics.

Yet in large measure that’s what we’ve come to as a result of the New Deal’s constitutional revolution. Following Franklin Roosevelt’s notorious Court-packing threat, judges essentially stepped aside, letting legislatures play politics at will, free from the restraint of constitutional law. The social schemes that followed came back to the courts in time, of course, with judges increasingly being asked to mend the mess legislatures were making of things — and thus “make law” themselves. But political activists didn’t always win in the political branches, so they soon turned directly to the courts, Califano style, hoping to find “sympathetic judges.” Given that politicization of law — which has unfolded over the past 65 years largely, but not entirely, at the hands of Democrats — is it any wonder that Democrats want now, with the prospect of many Bush judges before them, to know the ideology of those who will be “setting national policy”?

At the margins, at least, the Rehnquist Court has begun at last to depoliticize the law, most fundamentally in its federalism jurisprudence. That of course is what exercises Schumer — the idea that the Constitution might constrain congressional power. To the Framers, however, limited government was hardly a novel idea. Thus, in Federalist 45 Madison promised that the powers of the new government would be “few and defined.” Yet so far has modern law-as-politics allowed federal power to expand that a Court that seeks to restore law, however modestly, is called “activist” by many Democrats.

In other areas too, such as the protection of property rights and the restoration of a color-blind Constitution, the Rehnquist Court has moved marginally toward applying, not making law. Rather than address the fundamental problem of the politicization of the law, however, Senate Democrats are only exacerbating it by threatening to filibuster against Bush nominees who are “out of the mainstream.” What on earth does that mean? What’s the “mainstream” position on flag-burning, or unpopular speech, or racial preferences, or sodomy laws? And even if we could make sense of such a blatant political appeal, what would that have to do with law — or with the role of a judge in applying law? The whole point of having law — and constitutional law in particular — is to discipline politics and the raw power it amounts to. For in the end, the triumph of politics is the death of law — and with it, reason and justice.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.