Judging judges part one

Posted: Nov 20, 2002 12:00 AM

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.

While liberal judicial activism and conservative judicial activism are equally contrary to the rule of law, they have not been equally prevalent in our times. Despite determined efforts in recent years among liberals in the media and in academia to create such equivalence, what have been called "conservative judges" in our times have usually been judges who stick to the law as written. "Conservative activism" has become a clever slogan, seldom documented with concrete examples among contemporaries.

One of the more recent attempts at portraying judicial equivalence of the left and right, by Professor Cass Sunstein of the University of Chicago, speaks of "the new judicial activists" who have "struck down at least 26 acts of Congress." But this is a slippery use of words. Judicial activism is not measured by how many laws are struck down or upheld, but on what grounds laws have been either upheld or ruled unconstitutional.

Liberal judicial activists of the Warren court era let stand all sorts of liberal legislation that they agreed with, whether or not such legislation agreed with the Constitution. Earlier liberal activists even allowed the term "interstate commerce" to be stretched so far as to give Congress the power to regulate a man who grew vegetables in his own garden for his own use.

It is judges playing fast and loose with words that is judicial activism -- and the great danger to the rule of law. Now much of the liberal media and many liberal academics are playing fast and loose with words, in order to create a phony equivalence -- thereby providing excuses for the Senate to reject judges who stick to the law as "conservative activists" or "extremists."

Much of the future of American law depends on whether the Bush administration sticks to its guns, now that it has a majority in the Senate. With power comes responsibility and this is one of the most important tests of how President Bush uses that power.