Timed nicely for Sen. Charles Schumer’s summer hearings on judicial ideology and the Senate confirmation process, Democratic party elder Joseph A. Califano Jr., placed an op‐ed in the Washington Post entitled, “Yes, Litmus‐Test Judges.” The wraps are now fully off the Democrats’ plan to block President Bush’s nominees for the federal courts unless they meet a Democratic ideological litmus test. Early in the year, still smarting from the Supreme Court’s ruling in Bush v. Gore, academics like Yale Law School’s Bruce Ackerman urged Senate Democrats to reject every Bush nominee to the bench until the White House had a legitimate occupant. That was too much, of course. But Senate Democrats, once they regained power, did the next best thing. They’ve turned the judicial confirmation process into a full‐blown ideological affair, with today’s only the latest in a series of hearings not on the Bush nominees but on judicial ideology and the Senate’s confirmation role.
Califano now gives us the rationale for it all. Gridlock and big money, he says, have long kept Congress from legislating on a wide range of urgent matters. As a result, concerned citizens have been plying the courts with petitions they once took to the legislative and executive branches, making the courts “increasingly powerful architects of public policy.” Indeed, “who sits in federal district and appellate courts is more important than the struggle over the budget, the level of defense spending,” and virtually everything else going on in Washington today. For we’ve all learned, he continues, “that what can’t be won in the legislative or executive may be achievable in a federal district court where a sympathetic judge sits.” Thus, it’s time for the Senate to step in, not to legislate but to determine, on explicitly ideological grounds, who the judicial architects will be, who will be “setting national policy” from the bench.
What a striking picture. Everything is politics. Nothing is principle. Indeed, it is not a little noteworthy that over the entire article, devoted to our most basic political arrangements, the word “constitution” appears not even once. That’s no accident. The Constitution sets forth the principles and the rules under which we’re supposed to be governed. It divides and separates power, assigning different tasks to different parts of government.
But on Califano’s view, judges don’t apply law to decide disputes, as the Constitution contemplates. “Sympathetic judges” make law, like so many legislators, “setting national policy” in the process. As for our nominal legislators, the Senate is reduced to vetting and electing our true rulers. One imagines that the word “constitution” doesn’t appear in Califano’s article because the document is an embarrassing relic, utterly inconsistent with his picture of a thoroughly politicized judiciary.
Yet for all that, Califano’s picture, unfortunately, is too close to the truth to be ignored. The lesson he and his fellow Democrats have drawn from it is wrong — unless, of course, they like the picture. But we are today, in all candor, a very long way from living under constitutional principle.
The main origins of the problem are in the Progressive Era of a century ago, when the social engineers of the time sought to do through government what the Constitution left to be done in the private sector. Things came to a head during the New Deal when a frustrated Franklin Roosevelt attempted to pack the Supreme Court, an event Califano notes without comment. The scheme failed, but FDR won the day when a cowed Court began rethinking the Constitution, effectively eviscerating constitutional limits on federal power. Although the Court that emerged, by virtue of its deference to the political branches, was called “restrained,” it was, in truth, “activist” — finding congressional and executive powers nowhere granted, ignoring individual rights plainly in the Constitution. And the Court’s rethinking led ineluctably to the shift of power to the judicial branch.
The shift had two aspects. First, with the political branches now free to rule almost every aspect of our lives, it was only a matter of time before their ever‐expanding product ended up in the courts, with the courts asked to sort out the mess Congress was making of things. But second, those who had long pushed such programs didn’t always win in the political branches. When that happened, they turned increasingly to the courts, trying to win there, from “sympathetic judges,” what they had failed to win politically. Regrettably, the Warren and Burger Courts, already deferring to the political pursuit of “social justice,” were too often only too willing to step into the fray, imagining themselves to be a legislature of nine.
The Rehnquist Court, by contrast, has taken modest steps over the past decade toward resurrecting constitutional principles of limited government. However modest, those steps have alarmed liberal Democrats. They can’t imagine anyone thinking that Congress’s powers are limited. They can’t imagine that if an end is worthy, Congress might still not have the power to pursue it. They can’t imagine that James Madison, the principal architect of the Constitution, was serious when he wrote in Federalist #45 that the powers of the new government would be “few and defined.”
Do we want to ensure the separation of powers and an independent judiciary? Do we want to restore limited constitutional government and, let’s be clear, the rule of law? Those are the stakes in the current debate. If Senate Republicans are serious, they cannot pretend otherwise as the confirmation battles unfold.