Thomas Sowell

As a member of the Senate Judiciary Committee, Senator Arlen Specter has often justified his voting for or against judicial nominees on grounds that he supports those nominees whose views are in the "mainstream," as distinguished from those whose views are "extremist."

 Now that he is in line to become chairman of that committee in January, because of seniority, the meaning of these two elusive -- and elastic -- terms becomes crucial.

 Senator Specter voted against the confirmation of Judge Robert Bork and for the confirmation of Judge Antonin Scalia to the Supreme Court, even though their voting records on the Circuit Court of Appeals for the District of Columbia were virtually identical. On a couple of decisions where they differed, Judge Scalia took a more conservative position than Judge Bork did.

 Why then was Judge Bork considered to be so conservative as to be "out of the mainstream" while Judge Scalia was not? It had nothing to do with their records.

 It had to do with the fact that Antonin Scalia's nomination, which preceded Bork's, created no political firestorm because Scalia was replacing another conservative Justice and so would not have changed the lineup on the Supreme Court.

 Robert Bork, on the other hand, would have been replacing a more liberal Justice and therefore would have shifted the balance of power on the High Court. Liberal and left-wing organizations across the country mobilized to prevent that from happening at all costs and launched a massive smear campaign that created a new verb, "to Bork" a nominee.

 Those Senators who buckled under these pressures -- including Senator Arlen Specter -- could justify voting against Judge Bork on grounds that he was an "extremist." The term is very elastic and politically convenient.

 If "mainstream" becomes the litmus test for judicial nominees, then that means continuing the trends of the past half-century toward judges who take policy decisions out of the hands of the voters and their elected representatives, and impose their own notions as the law of the land.

 "Mainstream" is not even a fixed position. The more judges get away with overstepping the boundaries between the courts' jurisdictions and the areas reserved by the Constitution for democratically elected officials, the further into those reserved areas judges go.

 Within living memory, it would once have been considered unthinkable for a judge to order a state legislature to raise taxes to finance the judge's pet project. But that has now happened.


Thomas Sowell

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

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