- The Washington Times - Monday, November 8, 2004

Chief Justice of the United States William H. Rehnquist may soon retire because of ill-health or otherwise. President George W. Bush’s appointment of a successor could mark a turning point in constitutional law every bit as momentous as the appointments of Chief Justices John Marshall, Roger B. Taney or Earl Warren.

With so much riding in the balance, President Bush should honor his campaign pledge to appoint Supreme Court justices in the mold of Associate Justices Antonin Scalia and Clarence Thomas. Senate Democrats should renounce use of the filibuster against a Supreme Court nominee as a subversion of the constitutional requirement of a simple Senate majority to confirm. If that renunciation is not forthcoming, the Senate Republican majority should vote that such filibusters are unconstitutional and thus unenforceable to prevent a Senate floor vote on a judicial nominee.

The control over the appointment of justices by majorities is inevitable, traditional and essential to the power of judicial review. The high court has remained the crown jewel of the Constitution because of its balanced blend of independence in judicial decisions and politics in judicial appointments.

The Founding Fathers endowed the president, with the advice and consent of a simple Senate majority, to appoint justices featuring constitutional prejudices and philosophies sympathetic to the opinions of voting majorities.

Through appointments that reflect dominant orthodoxies, the Supreme Court has tacked and occasionally reversed course to avoid chronic clashes with prevailing mores. Too many assaults on public prejudices and conventions would awaken widespread evasion or defiance of Supreme Court decrees. The rule of law would wither if every constitutional ruling created a Little Rock, Ark., confrontation.

Entrusting Supreme Court appointments to a popularly elected president and Senate does not offend the Constitution’s separation of powers. As James Madison explained in Federalist 47, the concept envisions partial agency in or control over the power of judging by Congress and the president. Only the whole exercise of judicial power by another branch is condemned.

The Supreme Court, of course, must be more than a political weather vane to discharge its mission of checking legislative or executive usurpations or crusades in violation of constitutional limits. Indeed, the whole purpose of a written Constitution is to enshrine rights and to erect limitations immune from popular whimsies. As Justice Robert Jackson elaborated in West Virginia State Board of Education vs. Barnette (1943): “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

The Supreme Court’s paradox is that the public confidence indispensable to its ability to block unconstitutional action by the popularly elected branches of government requires appointments of justices responsive to those same branches.

President Bush received a mandate on Nov. 2 to appoint Supreme Court Justices in the image of Justice Scalia or Justice Thomas comparable to the 1936 mandate received by President Franklin D. Roosevelt to fill Supreme Court vacancies with justices committed to sustaining the New Deal. (Roosevelt did not flinch in appointing eight New Deal stalwarts to the high court). Defeated candidate John Kerry had promised nominees who celebrated airbrush artist jurisprudence epitomized by the U.S. Supreme Court’s Roe vs. Wade (1973) abortion decree and the same-sex “marriage” edict of the Massachusetts Supreme Court in Goodridge vs. Department of Public Health (2003). President Bush’s victory represented public endorsement of the idea judges should be confined to interpreting the text and purposes of the Constitution, and should renounce power to issue encyclicals in quixotic pursuit of a more perfect world.

Mr. Bush’s mandate was strengthened by the Republican Party’s capture of four additional seats in the Senate, raising their majority to 55. During the president’s first term, Senate Democrats resorted to unprecedented filibusters requiring a supermajority of 60 votes to break to thwart floor votes on several federal appeals court nominees whose incisive intellects threatened encrusted constitutional dogmas. The loss of four Democrat seats might be likened to a public vote of no-confidence in the filibuster tactic and support for President Bush on the judicial front.

Voters in 11 states further boosted the president’s mandate by overwhelming ratifications of state constitutional amendments that prohibit recognition of same-sex “marriages.” Those ratifications unequivocally repudiated the Massachusetts Supreme Court’s freestyle approach to interpreting the Massachusetts Constitution in discerning same-sex “marriage” as a constitutional right.

History should squelch alarm that respecting the Nov. 2 elections in the appointments of Supreme Court Justices would presage danger to constitutional law or the republic. President Roosevelt’s New Deal appointees overruled approximately 30 cases in four years and sounded the death knell for freedom of contract without wrenching the nation or staining the rule of law. They narrowed the worrisome distance between constitutional doctrines and popular will. Mr. Bush’s appointees can be expected to do the same.

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

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