Cooped up here in Washington by President Clinton's veto-threat
strategy last weekend, Sen. Patrick Leahy, the Judiciary Committee's top
Democrat, said that "there is much at stake in the next election and in
the appointment of ... federal judges." He's right.
Liberals believe the political ends justify the judicial means. Much
of their political agenda loses at the statehouse so to win they turn to
the courthouse, counting on political, activist judges who believe the
law is whatever they say it is. Al Gore says he will continue Clinton's
pattern of appointing activist judges who, he says, will breathe "deeper
meaning" into the law. That's code for manipulating the law to deliver
politically correct results.
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George W. Bush, on the other hand, promises to appoint judges who
will "interpret the law, not make it." This is the kind of judge,
restrained by the law instead of its master, necessary to preserve the
people's right to govern themselves and define the culture. If elected,
however, Bush will face at least four obstacles to re-balancing the
scales of justice.
The first obstacle is the vast number of activist "deeper meaning"
judges already out there. After 373 Clinton appointments (the
Republican Senate has defeated just one in its six years as the
majority), more than 52 percent of full-time federal judges have been
named by Democratic presidents. But it is the philosophical balance,
not the partisan tally, that really matters and here the picture is
actually worse. Democrats consistently appoint the activist judges
their liberal supporters demand, but Republicans appoint many activists
as well. On the Supreme Court, for example, while both Democratic
appointees are predictably in the activist wing, the Republicans are all
over the jurisprudential map. At least two Republican appointees can be
found in each of the Court's three voting blocs, from the most activist
to the most restrained.
Among the many lower court judges reviewing partial-birth abortion
bans, 100 percent of the Democratic appointees predictably struck them
down but a full 50 percent of Republican appointees did so as well. The
U.S. Court of Appeals for the Fifth Circuit recently allowed a school
district to discriminate against religious speech in renting its
facilities to private groups. Every Democratic appointee either
directly voted to uphold the discriminatory policy or opposed another
review of the issue. Republican appointees were split, one writing the
opinion justifying the discrimination and five others saying the court
"seriously erred" and urging the full court review that decision. With
a solid 95 percent of Democrats and at least one-third of Republicans of
the activist stripe, these politically-driven judges outnumber their
more modest brethren by 2-to-1.
The second obstacle is that opportunities directly to replace
activists with restrained judges may be relatively limited.
Unfortunately, most of the judges retiring right now are Reagan
appointees, many of them the very kind of traditional, restrained judges
Bush says he wants to appoint. Even if Bush improved on past Republican
inconsistency and appointed only restrained judges, fewer than half of
his appointments would actually make a net improvement in the
judiciary's overall philosophical balance.
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The third obstacle is raw political patronage. Presidents often
choose appointees from among candidates recommended by senators of their
own party. After eight years in the Clinton-Gore wilderness,
Republicans are pulling out their lists and checking them twice. They
all have friends, relatives, fund-raisers, and law partners who want to
be federal judges. But choosing judicial nominees based on who they
know rather than on what they believe will only make the situation
The fourth obstacle is the temptation to exalt political form over
principled substance. This thing called "diversity," the politically
correct gimmick-du-jour, can be very dangerous. If done for its own
sake, emphasizing diversity can easily become nothing but racial
discrimination, all the more pernicious because the discriminators claim
the nobility of good intentions.
We know, however, what exalting form over substance in judicial
selection costs the country. President Reagan's desire to appoint the
first woman to the Supreme Court resulted in choosing someone who has
undermined freedom and self-government through dramatically activist
decisions. Justice Sandra Day O'Connor engineered the re-write of the
First Amendment to ban not just a narrow "establishment" of religion but
a broad "endorsement" of religion as well. She forged new abortion
rules, replacing the made-up system created in Roe v. Wade with a new
made-up system that allows judges to regulate abortion in the name of a
Constitution silent on the subject.
Artificially creating "diversity" for its own sake may make some feel
better, but it undermines everyone's freedom. There is, however, great
value in a variety of judges all representing the same fundamental
principles. The best way to demonstrate that judicial restraint is
necessary for everyone's freedom is to consistently appoint men and
women, of different ethnic and other backgrounds, who are all committed
to this principle. But this requires a commitment to let such variety
be the compliment of, rather than the substitute for, the priority of
As Bob Dole once said, a president's most profound legacy is the
judges he appoints. If George W. Bush is elected, the kind of judge he
says he will appoint will be a profoundly good legacy for America.
Building that legacy will require discipline, a focus on the fundamental
priority of judicial restraint, and a strategy for overcoming these
obstacles. But in the end, it can be an incredible investment in