Farewell to the Chief

...Judges are shoots from the executive stock only, and so it is that a president can try, through his "shoots," to alter the jurisprudential direction of the courts—the Supreme Court included...

...Rehnquist didn't have enough allies to effect the counterrevolution...

...So here is George W. Bush, with an opportunity to move the Court to the judicial right...

...Reagan appointees O'Connor and Kennedy have disappointed everyone hoping they would be judicial conservatives on the order of Rehnquist or Scalia or Thomas...

...Scalia describes himself as an "origi-nalist," meaning he would defer to a text in terms of its objective meaning at the time of its enactment...

...According to Kenneth Starr's account in First Among Equals: The Supreme Court in American Life, had Reagan followed the Justice Department's recommendation, Bork would have been the choice, not O'Connor...

...With this phrase, Madison was making a point about where, in a government of separated powers, judges come from...

...Or by choosing someone who has said next to nothing about the great legal issues of the day—such as Souter, who once told a law clerk, "I never had to think about these things until I came to Washington...

...That's the number of Republicans in the Senate, and it should be enough to prevail if Senate Democrats decide to wage a confirmation battle...

...For example, in Planned Parenthood v. Casey (1992), Rehnquist, Scalia, and Thomas were equally prepared to overrule Roe...

...This point compels our attention as President Bush moves to fill two seats on the Court, the ones held by the late Chief Justice William Rehnquist and Associate Justice Sandra Day O'Connor...

...The same is true of Souter, George H.W...

...Rehnquist's tenure was effectively a dissent from those understandings...

...They are Scalia, Thomas, and Rehnquist, the nation's 16th chief justice, who, stricken with thyroid cancer, died on September 3. Rehnquist was one of four justices Richard Nixon appointed from 1969 to 1971...

...Federalism, the distribution of power between the national government and the states that the Framers understood as a protection for liberty, had ceased to be a vital principle...

...But the constitutional structure is such that no one can become a judge unless the president chooses the person...

...As this list of GOP presidents suggests, the Republican party has, for four decades, been the party of judicial conservatism, rhetorically at least...

...Contending against the idea that "nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so," Rehnquist articulated the essence of his jurisprudence: That "the people are the ultimate source of authority," that they have parceled that authority out in various ways to create a structure for self-governance that also protects individual rights, and that the job of the courts is to make sure that the federal government doesn't overstep its authority, nor that any government violates rights the people have established through law...

...He has maintained, for example, that interstate commerce, which Congress has authority to regulate, should be understood to extend only to transactions that actually cross state lines, a view that, were the Court to accept, would certainly clip the wings of the modern Congress...

...Defenders of the New Deal and Warren Courts thought that the Burger Court, being stocked with four shoots from the Nixon executive, might pose a serious threat to its precedents...

...What ought to embolden the president is a number— 55...

...The federal government was understood to have virtually unlimited power, with the states functioning essentially as subdivisions...

...I never thought about them...

...He made his views known early on...

...With the Reagan and then the Bush I presidency, he was given allies—^but not as many as it first appeared, and not enough to effect substantial change in key areas...

...If the experience of the past 40 years teaches that it is possible to pick jurists who turn out to be judicial conservatives, it also teaches that other, less agreeable, factors can influence the selection process...

...In 1981 Reagan considered a person's sex—he wanted to appoint the first female justice—when he picked O'Connor, who joined Rehnquist in his pro-federalism efforts, but whose approach to judging often resulted in mushy decisions that offered little guidance for future litigants...

...Thomas is also an originalist, but takes a natural-law approach in discerning the meaning of the Constitution...

...Bush...

...In 1976, Rehnquist wrote an article in the Texas L^'w R^'vi^'w titled "The Notion of a Living Constitution...

...there are others...

...But of the nine justices these Republican presidents appointed—ten if you include John Paul Stevens, named by the fourth GOP president during that period, the caretaker Gerald Ford—only three can fairly be described, without substantial qualification, as judicial conservatives...

...In choosing John Roberts to succeed Rehnquist, Bush may well have selected a genuine judicial conservative...

...It is one kind of judicial conservatism...

...The courts themselves were regarded as possessing authority to improve on the legislative choices of the people by divining and enforcing rights not found in the text or history of the Constitution...

...There are other differences between Scalia and Thomas, not least that of whether to adhere to original meaning when doing so would lead to rulings sharply at odds with the Court's precedents...

...The temptation will be to seek to preempt opposition from Senate Democrats by subordinating judicial philosophy, and choosing someone on the basis of, say, diversity...

...I had no settled views...

...Bush isn't the only president in the modern era to make that kind of promise...

...Bush's first appointee (Thomas was second...

...Rehnquist's judicial conservatism was grounded in democratic self-government and placed a premium on federalism...

...Scalia would not always so adhere and has called himself a "faint-hearted origi-nalist," while Thomas seems quite willing to follow his arguments where they may lead...

...Notwithstanding such differences among these three judicial conservatives, they held enough in common to produce agreement on most issues...

...On the other hand, it bears noting that Reagan appointee Kennedy is on the Court only because Democrats, who controlled the Senate at the time, successfully massed against Robert Bork...

...Rehnquist saw his own federalism opinion in National League of Cities repudiated nine years later in the Garcia case, and the Court's more recent efforts to revive federalism—for example, the series of commerce-clause decisions that Rehnquist inaugurated with his opinion for the Court in a 1995 case—may have foundered...

...Rehnquist stands out in many ways, most notably for a judicial philosophy that he brought to the Court fully developed, and adhered to with few exceptions throughout his long career, first as an associate justice and then, from 1986 to 2005, as the chief justice...

...In 1976, writing for a five-justice majority in National League of Cities v. Usery, Rehnquist found that a 1974 law extending provisions of the Fair Labor Standards Act to state and ^^ municipal employees interfered with state sovereignty and thus violated the Tenth Amendment, dormant since the New Deal...

...But among his appointees, only the redoubtable Rehnquist proved unambiguously conservative, and one—Harry Black-mun, author of the Court's opinion in Roe v. Wade—compiled a record celebrated by liberals...

...Richard Terry Eastland is publisher of THE WEEKLY STANDARD...

...No one doubts that Roe, for example, would have been overruled...

...Having clerked for Justice Robert Jackson, and written critically about the Supreme Court as early as 1957, Rehnquist formulated his approach to judging against the legacies of the New Deal and the Warren Court...

...Not incidentally, Republicans controlled the Senate in 1981...

...Meanwhile, the other three Republican-appointed justices—Sandra Day O'Connor, Anthony Kennedy, and David Souter—wrote the joint opinion in Casey declining to overrule Roe v. Wade...

...Three years earlier, in Roe v. Wade, when the Burger Court built on Warren Court precedents by declaring a constitutional right to abortion, a dissenting Rehnquist wrote that the majority had not followed the intent of the Constitution but engaged in "judicial legislation...

...But the Burger Court gave us, as the subtitle of one book put it, The Counter-Revolution That Wasn't...

...True, the Senate must approve a president's nominees, or else none can have life tenure...

...The question now is whether Bush will pick another judicial conservative to take O'Connor's place, thereby producing a vote shift and a more conservative Court...

...If Bush devalues judicial philosophy in choosing O'Connor's successor, the project of modern Republican presidents to redirect the Court will stay roughly where it is now, with no important advances...

...Had Bork been confirmed, the story of the long-running Republican effort to alter the Court's jurisprudence would have been significantly different...

...In his 1968 campaign for the presidency Nixon sharply criticized the Warren Court, especially its criminal-law decisions, and called for the appointment of "strict construction-ists" who would interpret the law and not see themselves as "superlegislators with a free hand to impose their social and political viewpoints upon the American people...

...and of course, the answer is the executive, since the Constitution plainly sets forth that it is the president who has the authority to select judges...

...Bush hasn't had a vacancy on his lengthening watch until now, but he has consistently stated his intention to appoint to the Court (and the courts below) judicial conservatives, citing Antonin Scalia and Clarence Thomas as examples of the kind of jurists he admires...

...Nixon was the first to do so, and then came Ronald Reagan, followed by Bush's father, George H.W...