Picking Judges: The Senate Should Stand on Principle

July 20, 2001 • Commentary

In a recent op‐​ed in the Washington Post, Edward Lazarus counsels Senate Democrats to reject the “highly credentialed, conservative ideologues” President Bush has nominated for the nation’s courts — and to do so “on overtly ideological grounds.” Claiming that “the nation as a whole is evenly split between the liberal and conservative approaches to constitutional law,” he urges Democrats to “force the administration into a compromise on judicial nominations.” He even suggests “jointly identifying judicial moderates (a rare breed) or taking turns in choosing judges for the battleground circuit courts.” The proposal is breathtaking, but it’s likely to be the Democratic position.

Fine — let’s have it out on “ideological” grounds. Maybe a little constitutional candor will emerge. Since the New Deal we’ve had precious little of that, and our legal and political discourse has been the poorer for it.

Unfortunately, the debate Lazarus sketches hardly approaches candor. It barely mentions the biggest issue — the scope of government power, and what the Constitution says about it — touching instead on such hot‐​button items as Roe v. Wade, affirmative action, church and state, the death penalty, and federalism. And Lazarus condemns as “irremediably flawed” the conservative idea that judges should interpret the Constitution according to the original understanding of the Framers. Divining the Framers’ intent is “usually impossible,” he says, “a deeply troubled methodology to reach deeply troubling conclusions.”

What’s the alternative? Lazarus doesn’t say, and not without reason, because if he did, even many Democrats would balk. In fact, the dirty little secret about the modern liberal’s approach to constitutional interpretation is that it makes a mockery of the document. Ignoring the text, it finds sweeping power for the political branches, especially the federal government, to promote “social change,” failing which the job falls to the judiciary. Stated simply, the ends justify the means, whatever the Constitution may say. Constitutional interpretation thus becomes a handmaiden to the liberal’ s conception of “progress.”

By now that view, its roots in Franklin Roosevelt’s 1937 Court‐​packing scheme, is so engrained that we hardly think twice about it. Congress has all but plenary power to redistribute and regulate at will, we believe. If Congress fails, or if it does so in a way that violates certain “fundamental” rights, whether or not in the Constitution, then judges can be counted on to right the wrong. In either case, authority to bring about the end can be divined in our “living Constitution” — a constitution of such evanescence as to be, well, dead.

Take Roe v. Wade, the decision that has poisoned serious constitutional thought for more than a quarter of a century. The basic question in the case is when the state has a right to protect life. Reasonable people can disagree about that. In fact, 30 years ago states were redrawing the line, as Justice Ruth Bader Ginsburg noted in a speech she gave just before being nominated for the High Court. But under our Constitution it is the states that have the authority to draw that line, not Congress, not the Supreme Court.

Or take affirmative action. Abolitionists, suffragists, and others fought long to secure the equal protection promised by the Constitution. Modern liberals sully that history by asking judges to ignore the promise. They make a mockery of equal protection.

Or take the most basic constitutional issue of all, the scope of government, which the Rehnquist Court has begun at last to revisit. In the Federalist, written to sell the new Constitution to a skeptical public, James Madison promised that the powers of the federal government would be “few and defined.” One imagines that the principal author of the document knew whereof he spoke. Yet today no one imagines federal powers to be few and defined.

We have yet to come to grips with the constitutional revolution the New Deal wrought. Conservatives like Robert Bork and Orrin Hatch have made practical peace with it — at the expense of their own credibility when they call themselves “originalists.” Liberals eschew credibility as they echo New Deal architect Rexford Tugwell: “to the extent [our programs] developed, they were tortured interpretations of a document intended to prevent them.”

So let the battle begin. The nation can profit by seeing how far we’ve strayed from a document meant to ensure individual liberty through limited government. If we truly want all the government we enjoy today, let’s amend the Constitution to authorize it. Otherwise we wallow ever deeper into constitutional confusion and, let’s be candid, illegitimacy. It was to ensure legitimacy, after all, that we wrote a Constitution in the first place.

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