Thomas Sowell

While the most immediate effect of the Republicans' election victories has been to strengthen President Bush's hand in dealing with the threat of Saddam Hussein, the most important long-run effect may be on the kind of federal judges who will shape the direction of American law over the next generation.

Now that the Democrats can no longer use their one-vote majority in the Senate to arrogantly set up new and dangerous criteria for confirming judges, it should be possible to get qualified judges confirmed, without these judges having to pledge in advance that they will prejudge hot-button issues like abortion or quotas, the way liberals in the Senate want them prejudged.

Emboldened by their heady -- and accidental -- one-vote majority, senators like Charles Schumer (D-New York) shamelessly proclaimed that ideology should be a litmus test for judges. The whole idea of an independent judiciary under the Constitution would thus be blithely thrown overboard, in order to serve the Democrats' current political base.

In both politics and the media, there has been too much misleading rhetoric about liberal and conservative judges. Whether liberal or conservative, judges are not there to impose their own ideology but to enforce the laws passed by others, including the supreme law of the Constitution of the United States.

Judges of course have opinions and ideologies, but those opinions and ideologies are not the law. Supreme Court Justice Oliver Wendell Holmes once denounced as a "creed of ignorance and immaturity" the views of a plaintiff for whose side he voted. Similarly, on the Court of Appeals, Judge Clarence Thomas once opined that he shared the policy views of plaintiffs that he proceeded to vote against. He understood that he was not elected to settle political issues but was appointed to carry out the law.

Nevertheless, it is true that many liberal judges and justices, especially beginning with the Warren court, have made only the thinnest pretense of carrying out the law, when in fact they were imposing liberal ideology in their decisions. In an earlier era, Justice Holmes implicitly criticized conservative judicial activism when he said: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."

This was not a criticism of Herbert Spencer, whose conservative views were very similar to those of Holmes himself. It was a criticism of judges using the law to impose ideology.

Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

Creators Syndicate