- The Washington Times - Friday, April 23, 2010

ANALYSIS/OPINION:

A few days ago, the doyen of the Supreme Court, liberal Justice John Paul Stevens, announced his impending retirement. Most likely, President Obama will nominate, as he did in the case of Sonia Sotomayor, a judge who hews to an activist judicial philosophy.

This is one that gives decisive weight, where statutory clarity may be lacking, to “what is in the judge’s heart” - as then-Sen. Obama put it in 2005 when he was one of just 22 senators to oppose President George W. Bush’s nomination of John G. Roberts Jr. as chief justice.

Oliver Wendell Holmes once said he often had given judgment in favor of claimants whose cause he deplored, as well as against those whose cause he favored. That’s what judges upholding the law need to be able to do. Yet conservatives have long worried about judicial activism that neglects this jurisprudential virtue.

The court presently is split 4-4 between liberals and conservatives, with the ninth, swinging justice, Anthony Kennedy, often casting a decisive vote one way or the other. Conservatives are thus concerned at the prospects of liberals in time obtaining a majority on the Supreme Court.

What to do?

Mark Levin, writing in his 2009 best-seller “Liberty and Tyranny,” contends that Republicans must work to establish a legislative veto over the court’s judicial review power so as to curtail what prominent conservative pundit George F. Will would call the “promiscuous minting of abstract rights and duties.” Perhaps, but it might prove difficult to devise and legislate such a veto.

Mr. Levin also counsels the abolition of lifetime tenure for justices, with its attendant potential for liberal justices to achieve several decades of activist imprint upon American jurisprudence. However, it is less than clear how this might help: Being necessarily a general measure, it would curtail the tenure of conservative justices just as surely as that of liberal justices. That makes little tactical sense when the court, in its present composition, consists of aging liberals and younger conservatives. Moreover, imposing a mandatory retirement age - on Australia’s High Court, for example, it is 70 - might well result in a spate of enforced retirements during a Democratic presidency, permitting a batch of liberal appointments unlikely to occur under the current system.

Mr. Levin’s third suggestion, however, has a point: Republicans, should they recover a Senate majority, as could possibly occur in November, must vote down any proposed judge “who rejects the jurisprudence of originalism.” This advice runs somewhat counter to traditional conservative impulses, which have been to engender bipartisanship over nominations and to confirm liberal nominees providing they have requisite judicial experience.

The record speaks clearly of this: At the time Mr. Levin’s book was published*, two of the court’s four liberals were nominated by Republican presidents and confirmed with a large, indeed overwhelming, measure of Republican support. John Paul Stevens, nominated by Gerald Ford in 1975, confirmed 98-0 by the Senate, and David Souter, nominated by George H.W. Bush in 1990, confirmed 90-9 by the Senate. While on the subject, the court’s swing justice, Anthony Kennedy, was nominated by Ronald Reagan in 1987 and confirmed 97-0.

In contrast, liberal senators in increasing numbers oppose conservative nominees put forward by Republican presidents, no matter how well qualified.

Starting with William H. Rehnquist’s nomination by Reagan for chief justice in 1986, which was confirmed by a less-than-acclamatory 65-33 votes; continuing with Robert Bork, whose nomination in 1987 by Reagan was rejected by a Senate vote of 58-42; to Clarence Thomas, nominated by George H.W. Bush in 1991 and confirmed by a slender 52-48 vote; Chief Justice Roberts, nominated in 2005 by George W. Bush and confirmed 78-22 by the Senate; and Samuel A. Alito Jr., nominated by George W. Bush in 2006 and confirmed by a 58-42 vote, the partisan pattern is obvious.

Indeed, Republican senators seem to be moving in the same direction. From the Senate having confirmed Clinton nominee Ruth Bader Ginsberg as recently as 1993 by a 96-3 vote, it subsequently confirmed Clinton nominee Stephen Breyer in 1994 by the large but reduced majority of 87-9 and now Obama nominee Sonia Sotomayor last year by the significantly smaller majority of 68-31.

Should Republicans join the Democrats at their own game, as they appear to be doing?

On balance, the answer may well be yes. For conservatives to support the appointment of liberal judges is to yield judicial-activism triumphs over a broad front. Given the stakes involved - the expanding extent of judicial purview and the centrality of judicial activism to the dirigiste, statist agenda - there would seem to be little incentive for conservatives to adhere to the old bipartisanship on judicial nominations. To do so would be a case of fruitless loyalty to a status quo that has not existed for some time.

Daniel Mandel is a fellow in history at Melbourne University and author of “H.V. Evatt and the Establishment of Israel” (Routledge, London, 2004).

*CLARIFICATION: When this article was first published, the phrase, “At the time Mr. Levin’s book was published,” was left out of a sentence referring to liberals on the court, leaving the impression that Justice David Souter continues to serve on the Supreme Court. He retired last year. Mr. Levin’s book was published in March 2009, before Justice Souter’s retirement.

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