- The Washington Times - Tuesday, March 7, 2000

The unifying theme of all the twists and turns in the Republican presidential race has been a sustained effort by each candidate to convince the voters that he is Ronald Reagan and his leading opponent is someone else, such as Bill Clinton, Bob Jones, or Captain Queeg. So it is important to ask which candidate would be more Reaganesque in his exercise of the power that has the most important and enduring effects on the way America is governed: nominating federal judges.

Some conservatives were unhappy with George W. Bush last summer when he said his judges would "strictly interpret the Constitution," but that he would not use abortion or any other issue as a "litmus test" for judicial candidates. These critics reasoned that if Mr. Bush really rejected litmus tests, he must be insincere in his support for retaining the Republican platform pledge to appoint judges who will uphold "traditional family values and innocent human life."

The explanations offered by Mr. Bush and some of his campaign officials were to the effect that trying to get judicial candidates to pledge their votes in future cases would be improper and probably counterproductive. If, on the other hand, the president would simply appoint judges who saw their role as interpreting a written Constitution rather than formulating good rules for modern living, then traditional family values and innocent human life would do just fine. This analysis got Mr. Bush into even deeper trouble with some conservatives which is odd, because he was saying almost word for word what those of us who worked on judicial selection in the Reagan administration used to say. We were widely regarded as pushing the envelope by insisting that questions about a candidate's constitutional philosophy were proper, even though we stopped well-short of asking for promises. That George W. was seen as something of a squish for holding exactly the same opinions we did must be yet another testimony to Mr. Reagan's ability to alter for all time the terms of a debate.

John McCain has said very little about the judicial selection process. Unfortunately for Mr. McCain, his campaign co-chairman has said a lot. Former Sen. Warren Rudman is often described as a likely attorney general the official who typically directs the judicial selection process in a McCain administration. Mr. Rudman wrote a book called "Combat" consisting of war stories about his Senate career, and some of his favorites have to do with judicial selection. Here is Mr. Rudman determined to vote against the confirmation of Supreme Court Justice Clarence Thomas if his had been the deciding vote; here he is voting for Mr. Thomas after all, in order to secure the nominations of three liberal judges to lower federal courts; and here he is again, engineering the nomination of his protg and best friend, David Souter, to the Supreme Court.

In each episode Mr. Rudman presents himself as the intrepid pragmatist putting one over on the somewhat less intrepid conservatives. He is particularly proud that Justice Souter went on to play the decisive role in the Supreme Court's 1993 decision to reaffirm the judicially-created constitutional right to abortion.

It is possible, of course, that President McCain would not let Warren Rudman anywhere near the judicial selection process. Yet both the tone and the substance of Mr. McCain's own recent statements about the "religious right," as well as his widely reported winking and nodding about abortion in off-the-record discussions on the Straight Talk Express, suggest more proximity to Warren Rudman than to Ronald Reagan on abortion and therefore on judicial selection. As Mr. Rudman's autobiography makes clear, exuberant pro-lifers are not the only ones with litmus tests.

Liberals and conservatives alike often discuss judicial selection primarily in relation to abortion. Nor is this view altogether unreasonable: abortion is an important issue about which courts have had far more to say than legislatures, which makes the composition of courts a matter of practical interest to partisans on both sides. Moreover, the abortion cases are so deeply problematic as a matter of constitutional theory that a judicial candidate's views on them tell an awful lot about his or her views on the nature of constitutional decision-making. Meanwhile, however, the hundreds of Reagan and Bush appointees to federal courts have tended to differ from their Carter and Clinton colleagues on a wide range of issues, from racial quotas to criminal procedure to tort reform.

In the aggregate, judicial decisions on such issues have had at least as much impact on the lives of ordinary Americans as Congress and the president have had in exercising the powers left to them by the federal judiciary. By wielding his hundreds of judicial nominations carefully and consistently, any president can influence events that will take place long after he leaves office.

Because the courts are now more or less evenly divided between Republican and Democratic appointees, the next few years' worth of appointments will be even more important. A Republican president can substantially reduce the extent to which Americans are governed by federal courts, by returning to the Reagan-Bush standard of "constructionism" of insistence that judicial nominees be genuinely committed to sincere efforts at construction rather than non-construction of constitutional and statutory text. Or he can squander this opportunity by making four or eight years' worth of ad-hoc appointments in which judicial philosophy does not count.

Grover Joseph Rees served as special counsel to the attorney general for judicial selection in the Reagan administration (1985-86).

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