- The Washington Times - Thursday, November 11, 2004

As a member of the Senate Judiciary Committee, Sen. Arlen Specter, Pennsylvania Republican, has often justified voting for or against judicial nominees on the grounds he supports nominees whose views are in the “mainstream,” as distinguished from those with “extremist” views.

With Mr. Specter in line because of his seniority to become committee chairman in January, the meaning of these two elusive — and elastic — terms becomes crucial.

Mr. Specter voted against confirming Judge Robert Bork and for the confirming Judge Antonin Scalia to the Supreme Court, even though their records were virtually identifical on the U.S. Circuit Court of Appeals for the District of Columbia. On a couple of decisions where they differed, Judge Scalia took a more conservative position than Judge Bork.

Why then was Judge Bork considered so conservative as to be “out of the mainstream” while Judge Scalia was not? It had nothing to do with their records.

It was because Justice Scalia’s nomination, which preceded Mr. Bork’s, created no political firestorm: Antonin Scalia was replacing another conservative justice and would not change the lineup on the Supreme Court.

Robert Bork, on the other hand, would have replaced a more liberal justice and therefore would have shifted the high court’s balance of power. Liberal and left-wing organizations across the country mobilized to prevent that at all costs. Their massive smear campaign resulted in a new verb: “to Bork” a nominee.

Those senators who buckled under these pressures — including Mr. Specter — could justify voting against Judge Bork on grounds he was an “extremist.” The term is very elastic and politically convenient.

If “mainstream” becomes the litmus test for judicial nominees, the last half-century’s trend will continue toward judges who remove policy decisions from voters and elected representatives and make their own notions the law of the land.

“Mainstream” is not even a fixed position. The more judges manage to overstep the boundaries between the courts’ jurisdictions and areas constitutionally reserved for elected officials, the further into those reserved areas judges go.

Within living memory, it would have been unthinkable for a judge to order a state legislature to raise taxes to finance the judge’s pet project. But that has now happened.

Issues such as same-sex “marriage” or abortion may stir controversy in the media — but it is mostly about which policy is desirable. The more fundamental question is: Who decides?

Those who say voters, not judges, should decide are not in the “mainstream.” They are considered “extremists.”

The easy way out for any president is to nominate people who can be easily confirmed by the Senate. Even conservative Republican presidents have put liberal zealots on the Supreme Court or have nominated people who carried the “moderate” or “conservative” label, but lacked the intellectual depth or backbone to resist fashionable trends toward judicial activism.

To President Bush’s credit, he has tried to stop the steady drift toward arbitrary judicial rule by nominating people like California Supreme Court Justice Janice Rogers Brown who have a track record of opposing judicial activism.

A president trying to fundamentally change the federal judiciary and a chairman of the Senate Judiciary Committee who wants to continue the “mainstream” trends are fundamental contradictions, no matter how much each side tries to paper over the difference with nice words.

With so many federal court vacancies, and with several Supreme Court openings almost certain in the next four years, this may be the last chance in our lifetime to reverse the trend toward government by unelected judges.

That is infinitely more important than Mr. Specter chairing the Senate Judiciary Committee because of his seniority.

Thomas Sowell is a nationally syndicated columnist.

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