Texas elects its judges, but Bush picked four state supreme court judges to fill unexpired terms. He went for the conventional categories of "diversity" -- one woman, one Hispanic-American, one judge who uses a wheelchair. All four said Bush hadn't asked their opinions on hot-button issues such as abortion and affirmative action. In a controversial case involving parental notification on abortion, three of the four Bush appointees voted to uphold a girl's desire to have the abortion without informing her parents.

"The (Bush appointees) have uniformly been chosen for quality. ... There has not been a litmus test. They are sort of middle-of-the-road on the court," said William Powers, the dean of the University of Texas Law School. Texas Lawyer analyzed the selections and came to the same conclusion.

All this is soothing to the left, but apt to cause some gas pains on the right. Bush is by temperament and political inclination a moderate who dislikes confrontation and likes to think of himself as a unifier.

Writing in The New Republic, Andrew Sullivan says he thinks Bush would pick moderate conservatives who would sail through committee hearings and bend this way and that way once on the court. Sullivan says: "These are exactly the kind of justices --David Souter, Anthony Kennedy, Sandra Day O'Connor -- who give conservative imprimaturs to such liberal landmark rulings as Roe vs. Wade and Romer vs. Evans." (Romer overturned a Colorado state constitutional amendment banning the creation of a legally protected category for gays.)

This is precisely the problem with Republican picks for the court. Before Clinton named Ruth Bader Ginsburg and Stephen Breyer, the Republicans had 10 straight selections, all explicitly chosen in the hope of turning the court away from making "landmark liberal rulings" that come out of the blue with no basis in the Constitution. They haven't.

When Justice William Brennan died, The Washington Post's Supreme Court reporter, Joan Biskupic, wrote an admiring obituary that contains the best short description of the philosophy behind "landmark liberal rulings." Brennan's vision, she wrote, "found the essential meaning of the Constitution not in the past but in contemporary life, prized individual rights beyond what was explicitly written in the text and compelled him to reach out to right perceived wrongs."

Backward-looking nonactivists may look for the meaning of the Constitution in the text and previous rulings on the text, but Brennan found it in "contemporary life," discovering (or inventing) unsuspected new rights, shaping his personal version of the Constitution to redress wrongs that he felt judges must correct. The blunt way to say this is that he made it up as he went along, erasing the line between law and politics.

Summing up what the court has become, Robert Bork wrote recently: "Constitutional law is useless to study and impossible to teach. ... What was within living memory an intellectual discipline is now politics, and a simplistic, highly partisan form of politics at that." Continued...