- The Washington Times - Tuesday, November 12, 2002

President George W. Bush's 2002 midterm campaign for Republican Senate candidates featured anguish over Democrat implacability to his impeccable federal judicial nominees.

The sinning of the nominees, in the eyes of scheming Senate Judiciary Committee strongmen Patrick Leahy, Vermont Democrat, and Charles Schumer, New York Democrat, was thinking too much and too trenchantly about the law. Just as the intellectual ancestors of these two zealous solons cherished the geocentric over the heliocentric vision of the universe, so Mr. Leahy and Mr. Schumer abhorred the prospect of enlightened judicial reconsideration of intellectually decrepit constitutional precedents and doctrines.

That darkness was lifted from the brow of the federal judiciary last week when the Republicans captured the Senate and control over the Judiciary Committee's agenda. Waiting in the queue for confirmation to federal appellate courts are disciples of President Ronald Reagan's judicial pantheon, including John Roberts, Miguel Estrada, Mike McConnell, Carolyn Kuhl and Priscilla Owen.

What counts vastly more than their number is their razor-sharp mental acuity. Of the 167 federal appellate judgeships, incumbents without strong philosophical convictions predominate. They are generally persuadable at the cutting edges of the law and in the application of old axioms to new conditions. But their persuasion away from inculcated orthodoxies taught in law school and in professional circles requires powerfully crafted and brilliantly conceived counterarguments. That is where the Bush nominees excel; that is why they aroused fright in the likes of Mr. Leahy and Mr. Schumer.

The Reagan judicial legacy speaks volumes. He populated courts of appeals with brilliant thinkers versed in the arts of persuasion. The U.S. Court of Appeals for the District of Columbia Circuit alone shined with likes of Robert H. Bork, Antonin Scalia (later elevated to the Supreme Court), Laurence Silberman, Kenneth Starr, James Buckley, Raymond Randolph, Douglas Ginsburg, and Stephen Williams. Once a hyperliberal bastion of sociological engineering lead by Judges David Bazelon and J. Skelly Wright, the District of Columbia Circuit was transformed overnight into a voice of authentic judging. Circumspection over poaching on power constitutionally lodged elsewhere became its sine; and, unflinching defense of constitutional rights secured against majority rule became its cosine.

Other courts of appeal were also studded with Reagan judicial gems, such as Alex Kozinski of the 9th Circuit, Jay Harvey Wilkinson, chief judge of the 4th Circuit, Danny Boggs of the 6th Circuit, Ralph Winter of the 2nd Circuit, Pasco Bowman of the 8th Circuit, and Richard Posner and Frank Easterbrook of the 7th Circuit, veritable legal geniuses. The Reagan judicial impact has been profound. In 1980, to question racial or ethnic preferences or affirmative action was constitutional heresy. Now, it is orthodoxy. Then, mandatory busing for school desegregation was de rigueur. Now, it is a museum piece.

As the Reagan decade opened, the Fourth Amendment was riddled with technicalities that foiled convicting the guilty. Now, the Amendment steers a measured course between deterring police abuses and crime fighting.

Mr. Reagan's appointees confronted a church-state inflexibility that prohibited even moment-of-silence laws and remedial secular education for the underprivileged in sectarian schools. Now, school vouchers and equipment aid to private schools, both secular and sectarian, pass constitutional muster. Mr. Reagan's judges similarly encountered doctrines that crowned Congress with unchecked power to regulate every nook and cranny of public life. Now, Congress is forbidden to regulate a field directly without serious proof of past constitutional violations or a nontrivial impact on interstate or foreign commerce. (Congress retains formidable power to entice states to change their ways by attaching conditions to the receipt of federal dollars).

President Bush's appellate court nominees are every bit as talented as their Reagan predecessors, and promise an equally profound revolution in the face of constitutional law. It will smack more of Norman Rockwell and less of Jackson Pollock.

Nov. 5 also harbingers vacancies in the Supreme Court when its current term concludes in June 2003. Chief Justice William H. Rehnquist and Associate Justice Sandra Day O'Connor are prominent candidates for retirement. The former has served with distinction for more than three decades since 1971, and since 1986 as chief justice. The latter, sotto voce, has indicated a yearning to return to the pleasantries of Arizona after more than 20 years of able service on the high court.

Their windows of opportunity are next year because court appointments are customarily held in abeyance during presidential years. With Republicans controlling both the White House and Senate in 2003, the nominees to succeed the chief justice and Justice O'Connor would not confront Borklike nastiness that the Supreme Court as an institution. Remember that Justice Scalia, a virtual carbon copy of Judge Robert Bork on the District of Columbia Circuit in more than 400 cases, was unanimously and smoothly confirmed in 1986 with Strom Thurmond, South Carolina Republican, heading the Judiciary Committee. One year later, with Joseph Biden, Delaware Democrat, at the helm, Judge Bork was lacerated.

In anticipation of 2004, President Bush would probably seek a Hispanic and a woman to fill the putative Rehnquist and O'Connor vacancies. And Mr. Bush's appointees would presage a material conservative shift on abortion, church-state relations, affirmative action, voting rights, and the death penalty.

But Roe vs. Wade (1973) will remain undisturbed. As Chief Justice Rehnquist analogously reasoned in Dickerson vs. United States (2000), explaining the court's declination to overrule Miranda vs. Arizona (1966), the peak of the Warren Court's follies, the right to an abortion has become too firmly fixed in American culture to be altered by nine unelected judges in lieu of a constitutional amendment.

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