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Getting serious about the Supreme Court

By W. James Antle III
web posted November 7, 2005

"Racist, sexist, anti-gay, right-wing judges go away!" So the young protestors chanted when Judge Samuel Alito was nominated to the Supreme Court. The Harriet Miers interlude, pitting President Bush against his own base, has been replaced with a bare-knuckled ideological scrap between the left and the right.

Harriet MiersBut before Ms. Miers shuffles off to join Bernie Kerik, Lani Guinier and Douglas Ginsburg in the pantheon of failed presidential nominations, we might pause to reflect on one little noticed lesson from her 15 minutes of fame: it may have marked the first time conservatives took the courts as seriously as their liberal counterparts.

This may seem a strange statement, since opposition to liberal activist judges has been a pillar of the modern American conservative movement and a fixture in Republican campaign speeches for decades. Fifty years ago, conservatives cried "Impeach Earl Warren!" Today, the biggest voting bloc on the right was pressed into political action by Supreme Court rulings that expelled the Bible from public schools, banished even the most innocuous nonsectarian prayers and legalized abortion throughout the country.

As important as the composition of the federal judiciary is to nearly ever cause conservatives hold dear, the right has simply not fought this battle by the same rules as their ideological opponents.

Consider: no Democrat likely to win the party's presidential nomination would knowingly appoint someone who believed Roe v. Wade was wrongly decided to the Supreme Court. Barring a post-appointment conversion, this generation will never see another Bryon White. Bill Clinton, Al Gore and John Kerry did not even attempt to conceal this fact. Roe will almost certainly be a litmus test for the next Democratic president (although as Timothy Carney notes, there is no shortage of pro-choice liberals willing to acknowledge that the ruling was bad constitutional law).

By contrast, Republican presidents nominate both supporters and opponents of Roe. Harry Blackmun, Roe's architect, was nominated by Richard Nixon. John Paul Stevens, who is pro-Roe, was picked by Gerald Ford. Ronald Reagan nominated one anti-Roe associate justice (Antonin Scalia) and promoted another to chief justice (the late William Rehnquist), but he also selected pro-Roe Sandra Day O'Connor and Anthony Kennedy. George H.W. Bush's two Supreme Court picks split on Roe.

Republican presidents claim to have never even discussed the 1973 decision with their prospective nominees, much less made it a litmus test for consideration. To some extent, this reflects the fact that Roe polls well (though the specific abortion policy in mandated does not). But given the number of Republican-appointed justices willing to affirm Roe, there may be some truth to these denials.

When Republican presidents sought by their judicial nominations to undo the handiwork of the Warren Court, Democrats and liberal activists did not take long to spring into action. They defeated Nixon's choices of Clement Haynesworth and Harold Carswell, clearing the way for future nominees like Blackmun and Lewis Powell. They let Scalia slip through by 98 to 0 in 1986 largely because the Democratic Senate minority was fighting Rehnquist's promotion.

That was just practice for the unprecedented onslaught against Robert Bork in 1987. Sen. Ted Kennedy accused Bork of wanting to force blacks to eat at segregated lunch counters while women died from back-alley abortions. Liberal Republicans, like current Senate Judiciary Committee Chairman Arlen Specter, defected. Borking was born.

Another borking was attempted against Clarence Thomas in 1991. He was savaged by activists who revile him to this day and embarrassed by the Anita Hill episode. Thomas' nomination prevailed only because ten, mostly Southern and conservative, Democrats broke ranks to confirm him.

Yet when it came time to vote on Ruth Bader Ginsburg—whose record and public statements included at least as much red meat for the right as Bork's did for the left—she was given a pass. She was allowed to avoid answering detailed questions about her judicial philosophy. Only Jesse Helms, Don Nickles and New Hampshire's Bob Smith opposed her.

To be sure, Senate Republicans—especially once they were in the majority after 1995—gave Bill Clinton plenty of trouble on some of his lower court appointments. Republicans who would today insist that a president is entitled to a straight up or down vote on all his nominees were then engaging in obstructionism. But there was no organized, concerted campaign comparable to the liberals'; Clinton's Supreme Court picks sailed through with strong bipartisan support.

Indeed, Republicans internalized the wrong lessons from the Bork experience. Instead of unashamedly raising the banner of constitutionalism, they sought to compete by insisting that Republican-appointed judges shouldn't have to answer any questions about their judicial philosophy. Potential judges should keep quiet about their opinions and accumulate no paper trail. But the outcome of this stealth nominee strategy is that nearly half the Republican Supreme Court appointments since the Eisenhower administration have disappointed conservatives.

Before Harriet Miers, the only time conservatives sank a Supreme Court nominee was when they opposed the elevation of Abe Fortas to chief justice. But even then, judicial philosophy wasn't the sole reason for Fortas' defeat. There were concerns about ethics and cronyism. Lyndon Johnson was by that time a weakened president and opposition to Fortas was bipartisan.

When conservatives went against a Republican president on Miers, they were saying that judicial philosophy matters. They were insisting that the makeup of the federal courts matters. Instead of allowing all the advocacy to come from the other side, these conservatives were arguing that scarcely any issue matters more than forging a constitutionalist majority on the Supreme Court.

Only time will tell whether conservatives retain that fighting spirit. If the early salvos against Alito are any indication, they are going to need it.

W. James Antle III is an assistant editor of The American Conservative and a senior editor for Enter Stage Right. The views expressed above represent his alone.

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