Wretched judging

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The fight over President George W. Bush's judicial nominees is a fight between clashing conceptions of judging. Concocted interpretations will triumph over textual constructions if President Bush is defeated.

Senate Democrats covet justices who will summon into being rights that correspond to their personal sense of fairness or moral decency. They maintain statutory language should be marginalized as an irksome restraint on judicial engineering of utopia. To borrow from Humpty Dumpty in "Through the Looking-Glass," a word in the Constitution or law should mean what a justice chooses it to mean -- neither more nor less.

In sharp contrast, the president and Senate Republicans champion justices modeled after Antonin Scalia and Clarence Thomas, who would confine adjudication to interpreting the text of the Constitution and statutes. They believe the judiciary should honor the discernible intent of the Founding Fathers and Congress as deduced from the language they employed.

Justice Sandra Day O'Connor's preposterous interpretation of sex discrimination under Title IX of the Education Amendments of 1972 in Jackson v. Birmingham Board of Education (March 29) epitomizes the Senate Democrats' conception of good judging. Justice Thomas' dissent captures the Bush-Senate Republican vision of adjudication.

Title IX commendably prohibits sex discrimination by recipients of federal educational funding. The statutory language is straightforward: "No person ... shall, on the basis of sex,... be subjected to discrimination under any educational program or activity receiving federal financial assistance." Unlike sister civil rights statutes, like Title VII of the Civil Rights Act, Title IX's language does not condemn retaliation against persons who have complained of Title IX infractions.

Writing for a thin 5-4 majority in Jackson, Justice O'Connor dismissed that omission as a legislative folly that should be ignored to encourage more Title IX gripes. A male coach of a girl's high school basketball team was terminated for complaining to his supervisors of inferior funding, athletic equipment and facilities that allegedly constituted sex discrimination. He sued the Birmingham Board of Education claiming the retaliation violated Title IX.

The coach conceded his maleness did not motivate his termination. He further did not prove the girl's basketball team was slighted in violation of Title IX. In other words, the complaint failed to assert anyone suffered discrimination "on the basis of sex," but still insisted Title IX's prohibition of sex discrimination had been violated. And Justice O'Connor agreed.

She urged that "retaliation is discrimination 'on the basis of sex' because it is an intentional response to the nature of the complaint: an allegation of sex discrimination." But the plain language of Title IX protects only against sex discrimination, not against complaints about violations.

That sharp distinction is acknowledged in companion civil rights laws that separately prohibit retaliation and discrimination. Title VII, for example, makes unlawful an employer's retaliation against an employee because he has "opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." That detailed statutory language is reduced to superfluity by Justice O'Connor's imaginative conception of discrimination on the basis of sex.

Indeed, the justice doubted her conclusion was faithful to Title IX's text. She thus resorted to nonstatutory policy reasons to defend her interpretive frolic: "If recipients were permitted to retaliate freely, individuals who witness discrimination would be loathe to report it, and all manner of Title IX violations might go unremedied as a result. ... Moreover, teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators." But if securing maximum compliance with Title IX was a legitimate interpretive standard, Justice O'Connor could equally dictate treble damages and criminal punishments for violations irrespective of the less ambitious language of the law.

In any event, Congress resisted Justice O'Connor's arguments. The retaliation problem may have seemed trivial. Bogus complaints by incompetent instructors may have seemed more troublesome. And the enactment of Title IX might have required the exclusion of retaliation claims.

Justices usurp lawmaking choices when they manipulate interpretation to overcome perceived deficiencies in legislation. That explains Justice Thomas' dissent, joined by Chief Justice William Rehnquist and Justices Scalia and Anthony Kennedy. Justice Thomas worried that "[u]nder the majority's reasoning, courts may expand liability as they, rather than Congress, see fit. ... [T]he majority substitutes its policy judgments for the bargains struck by Congress, as reflected in the statute's text. The question before us is only whether Title IX prohibits retaliation, not whether prohibiting it is good policy."

The difference between President Bush's judges and the jurists celebrated by Senate Democrats is the gaping difference between Justices Thomas and O'Connor in Jackson.

The enormity of the stakes in thwarting the threatened Democrat filibustering of President Bush's Supreme Court nominees should be self-evident.

Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and the Lichfield Group.