Debasing judicial debate

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Slated to lead Senate Democrats in the 109th Congress, Sen. Harry Reid of Nevada epitomizes Democratic Party descent from debate to deceit in criticizing conservative Supreme Court justices and distorting court rulings.

That vertical plunge in intellectual honesty thwarts constructive exchanges over the Constitution and Supreme Court appointments. Mr. Reid and colleagues should either do their judicial homework or remain silent. Nothing is as dangerous as ignorance or propaganda in action.

James Taranto ( Opinion Journal, Jan. 3) has highlighted Mr. Reid's continued assault on Justice Clarence Thomas' credentials in Mr. Reid's Dec. 26 interview on CNN's "Inside Politics." He owlishly pointed to the Hillside Dairy case as exemplary of Justice Thomas' unfitness. According to Mr. Reid, Justice Antonin Scalia had penned a "well reasoned" dissent in Hillside Dairy dazzling with the earmarks of a Harvard graduate, as contrasted with Justice Thomas' "poorly written" counterpart smacking of an "eighth-grade" composition.

Moreover, the senator sermonized, Justice Thomas' dissent had sinned by questioning the Supreme Court's use of the Commerce Clause to invalidate state laws that burdened interstate commerce, whereas Justice Scalia had respected constitutional precedents.

The facts discredit Mr. Reid. In Hillside Dairy vs. Lyons (2003), the Supreme Court voted 8-1 to hold California's milk pricing and pooling regulations subject to constitutional attack under the Commerce Clause. Justice Scalia joined the majority opinion authored by Justice John Paul Stevens. He neither dissented nor wrote a "well reasoned" dissent. Justice Thomas concurred and dissented in part with a one-paragraph opinion relying on his earlier exhaustive dissent, joined by Justice Scalia, in Camps Newfound/Owatonna Inc. vs. Town of Harrison (1997).

Both Justice Thomas and Justice Scalia would deny that the Commerce Clause, alone, generally empowers the Supreme Court to void state laws it finds obnoxious to free trade among the states. Justice Scalia had come to question that doctrine before Justice Thomas' appointment in Tyler Pipe Industries Inc. vs. Washington State Department of Revenue (1987), Bendix Autolite Corp. vs. Midwesco Enterprises Inc. (1988).

Mr. Reid's staggering errors in comparing Justice Thomas to Justice Scalia and relying on Hillside Dairy suggests malice and scorn for reasoned debate. It characterizes the majority of Democrat opposition to reshaping constitutional doctrines through the time-honored custom of appointing new judges.

As Chief Justice William H. Rehnquist recently reminded in his state of the federal judiciary address, President Franklin D. Roosevelt "eventually won the war to change the judicial philosophy of the Supreme Court ... by the gradual process of changing the federal judiciary through the appointment process. ... In this way, our Constitution has struck a balance between judicial independence and accountability, giving individual judges secure tenure but making the federal judiciary ultimately subject to the popular will because judges are appointed and confirmed by elected officials. ... [F]or over 200 years it has served our democracy well and ensured a commitment to the rule of law."

Democrats and their ideological allies falsely insist the Supreme Court under the stewardships of Chief Justices Warren Burger and William Rehnquist have been regularly hostile to racial justice, civil rights, freedom of speech, separation of church and state and privacy. To the contrary, the Burger and Rehnquist courts have sustained racial and gender preferences in education and employment and outlawed all-male military academies in such landmark precedents as Griggs vs. Duke Power (1971), Steelworkers vs. Weber (1979), Fullilove vs. Klutznick (1980), Johnson vs. Transportation Agency, Santa Clara County (1987), Virginia vs. United States (1996), and Grutter vs. Bollinger (2004). Further, the court has interpreted the Voting Rights Act to authorize, de facto, racial gerrymandering to promote election of minority candidates.

Freedoms of speech and of the press have flourished under the Burger and Rehnquist stewardships. Flag desecration laws have been held unconstitutional. And every manner of salacious or sexually explicit expression, including child pornography, has been held protected by the First Amendment. Repeated congressional efforts to shield minors from indecency have been frustrated, most recently in Ashcroft vs. American Civil Liberties Union (2004).

The separation of church and state has reached an oceanic divide since the beginning of the Burger court in 1969. Chief Justice Burger himself in Lemon vs. Kurtzman (1971) fashioned a three-part test that casts suspicion over any government acknowledgment of religion in public life.

Thus, a moment-of-silence law was held unconstitutional in Wallace vs. Jaffrey (1982). Ditto for posting the Ten Commandments in Stone vs. Graham (1980). And a court majority shied from upholding the expression "under God" as part of the Pledge of Allegiance in Elk Grove United School District vs. Newdow (2004).

On constitutional privacy, the Burger Court voted 7-2 to create a virtually unlimited right to an abortion in Roe vs. Wade (1973) and Doe vs. Bolton (1973). Those core holdings have been undisturbed for 32 years, and have been sustained by Reagan appointees Sandra Day O'Connor and Anthony Kennedy. Their reversal is unlikely despite new court appointments because of prudence and the force of stare decisis. A constitutional right to homosexual sodomy was ordained by the Rehnquist court in Lawrence vs. Texas (2003).

In sum, the Democrats' characterization of the Supreme Court since President Richard Nixon as a bulwark of fringe or right-wing conservatism is counterfactual in the extreme.

Enlightened debate pivots on matters of degree and on balance among competing values and objectives. But that prized goal as regards the Supreme Court is frustrated by egregious and shameless Democrat skewing of the facts and the law.

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