Constitutional Opinions: 1 Deactivate the Courts

...The fifty-six Senate Republicans do have a large majority, and yet, for them to oppose a nominee on grounds of judicial philosophy, they will have to define it, as the Democratic Senate did in the case of Bork...

...And it would do so in an ongoing story that saw a single judge step on a position (against preferences) that happens to enjoy majority support throughout the country...

...That rejection turned out to be one of the most important political events of the 1980's...

...But no more than one of the four Justices he appointed (William Rehnquist) came close to fitting the bill...

...Thus, Robert Bork has suggested an amendment by which Congress, upon the two-thirds vote of both houses, could overrule a constitutional decision by the Court...

...In the Casey decision, precedent—and an attendant (and much too precious) concern for the role in our society of the Supreme Court—was sufficient to persuade Kennedy, Souter, and O'Connor against overruling Roe...

...That counterattack has until now relied upon the executive powers to nominate and appoint judges...

...Indeed, the federal courts, including the Supreme Court, would have been more activist had Hubert Humphrey, George McGovern, Jimmy Carter, Walter Mondale, or Dukakis been elected president Nixon, Ford, Reagan, and Bush could, in many instances, certainly have made better choices at all levels of the federal judiciary...

...The underlying premise here is that only when enforcement occurs, and a party claims injury, can there be a real case in which the question of a law's constitutionality may properly be raised and decided...

...Judge Thelton Henderson did so, issuing a temporary restraining order before Thanksgiving...

...In the years since it began, Republican presidents have had ample opportunity to stamp their marks on the American judiciary...

...his successor George Bush—pitted against Michael Dukakis and a Democratic Party in happy agreement with the results (and methods) of modern judicial activism—ran on those terms as well...

...Other activist decisions would have been reigned in...

...America's judges have often overstepped their appropriate powers by legislating both liberal and conservative results...

...Gingrich and Lott, if they are bold, will present appropriate legislation to Clinton...

...had Bork joined the Court, there can be little doubt that Roe would have been overruled...

...Kennedy has not been a total joy for liberals—his race jurispru60 March 1997 The American Spectator dence all but embraces colorblind principle —but Bork he most definitely is not...

...Nor did Gerald Ford's lone appointee, John Paul Stevens...

...Kennedy also wrote not only Romer but the Court's 1992 decision in Lee v. Wiseman (joined by O'Connor and Sauter) disallowing prayers at public middle- and high-school graduation ceremonies...

...In 1980 Ronald Reagan ran for office on Nixonian terms, attacking judicial activism TERRY EASTLAND iS a fellow at the Ethics and Public Policy Center, editor of Forbes MediaCritic (available on-line early this year), and author of Ending Affirmative Action: The Case for Colorblind Justice (Basic Books...

...and if the Senate is controlled by the party opposite, the odds increase that the president will not get his first choice...

...The only Supreme Court nominees not to be confirmed during these years were made by Republican presidents and rejected by Democratic Senates: Nixon nominees were twice denied and, in 1987, the Senate also rejected Robert Bork...

...instead they do what Judge Henderson did...

...on Christmas Eve he issued a preliminary injunction...

...Unless it defines judicial restraint in terms that reject the approach sometimes taken by Kennedy, Souter, and O'Connor, the Republican Senate will be unable to credibly oppose Clinton nominees who emphasize precedent and incremental law-making...

...The Court's opinion last year in Evans v. Romer, for example, which invalidated an amendment to the Colorado constitution prohibiting the state and localities from treating "homosexual orientation" as a prohibited basis for discrimination, was written by Reagan appointee Anthony Kennedy and joined by Reagan appointee Sandra Day O'Connor and Bush appointee David Souter...

...Reagan and Bush named three-quarters of the lower bench and appointed five associate justices in twelve years, with Reagan also elevating Rehnquist to chief justice...

...Certainly the defenders of the status quo (in the American Bar Association, for example) wouldrally against Bork's amendment or judicial term limits, contending that either would threaten the "independence" of the judiciary...

...But that might be a price worth paying, given the tendency of judges to "grow" in an activist direction...

...But Clinton is too smart to put up such a nominee, or at least very many of them...

...Sometimes these sources of authority direct the justices to the same conclusion, and sometimes they don't...

...As Michael Stokes Paulsen of the University of Minnesota Law School observed in the 1993 issue of the Public Interest Law Review, the Republican appointees on the Rehnquist Court defer to different sources of legal authority: text, original intent, the democratic choices of the federal elective branches, federalism, and judicial precedent...

...t would be wrong to conclude from the I history of Republican judicial selection that presidents cannot influence the direction of the courts through their choices for the bench...

...new ones would not have been rendered...

...An amendment limiting the terms of federal judges is also worth considering...

...The recent history of judicial appointments would seem to suggest a strategy for the GOP Senate—reject activist nominees...

...But here we are in 1997, and judicial appointments have not fixed the problem of judicial activism...

...Is he for constitutional self-government, or rule by judges...

...Such an amendment may seem a long way off, but so did the balanced budget amendment not that long ago...

...There are other congressional means of tackling judicial activism —proposing constitutional amendments and passing legislation...

...It's doubtful the Senate would draw such a line, since some Republican senators probably agree with the emphasis on precedent, and those that don't may be skittish about appearing critical of Republican-appointed justices...

...In 1968 Richard Nixon ran explicitly against the Warren Court, promising to appoint "strict constructionists...

...Henderson's judgment is now on appeal to the Ninth Circuit, and this fall the case will likely be in the Supreme Court...

...But look at what happened: The people of California adopted a constitutional amendment—an act of self-governance — and prior to any actual enforcement, the amendment was nullified by a judge...

...Bork's proposal is realistic about what judicial power has become, and it is equally realistic in grasping the need for more readily available means of responding to its misuses in constitutional cases...

...As it happened, Anthony Kennedy, whom Reagan appointed in Bork's place, joined with O'Connor and Souter to cast the decisive votes to uphold Roe in Planned Parenthood v. Casey (1992...

...Only a handful of Supreme Court decisions have been reversed by amendment, and there is no groundswell for an amendment that would overrule, say, Roe or Romer or Lee...

...One drawback is that it would require the departure of good judges as well...

...The better course, which he mostly has taken, is to nominate bland lawyers likely to adhere to precedent—and thus the activist decisions of the Warren, Burger, and Rehnquist Courts—and enlarge judicial power by turns...

...Any of the Court's rulings would be subject to reversal, but it would most likely affect activist decisions yet to come, as these will be the ones most likely noticed and felt by the public...

...Amending the Constitution is notoriously hard to do...

...Now, with the probability that by 2001 every other federal judge will be a Clinton appointee and the possibility that President Clinton might name another justice or two (his two appointees are the first by a Democratic president since LBJ), the problem Gingrich and Lott say they will address threatens to become worse...

...This could be a problem...

...The beauty of this rule is that it would target judging when it prematurely steps on self-government...

...Congressional hearings on the improper exercise of judicial power and its negative impact on self-government could sharpen understanding and make judicial activism a subject of national debate...

...In fact, some of the opinions drawing the sharpest criticism from conservatives were written or joined by Reagan and Bush appointees...

...As for legislation, the current litigation in California over Proposition 209 illustrates a particular problem amenable to legislative solution...

...Both House Speaker Newt Gingrich and Senate Majority Leader Trent Lott have asked the heads of their judiciary committees (Henry Hyde and Orrin Hatch, respectively) what can be done about the problem, which dates back to the nineteenth century...

...209 prohibits race-and sex-based preferences in California's public sector...

...An amendment limiting the terms of federal judges to, say, fifteen years would also be worth considering...

...As it happens, Congress has the constitutional authority to address such abuses through a statute disallowing judicial relief against laws adopted by referenda prior to their enforcement...

...An amendment to the state constitution, Prop...

...Only two of the ten justices appointed by Republican presidents since 1969, for instance — Sandra Day O'Connor in 1981 and Antonin Scalia in 1986 —were nominated when the GOP controlled the Senate, while the only two justices appointed by a Democrat since the 1960's —Ruth Ginsburg in 1993 and Stephen Breyer in 1994—were nominated when Democrats were in charge...

...The Burger Court (1969-1986) gave the country Roe v. Wade, a decision absolutely without constitutional basis, and proved only slightly less activist than its predecessor...

...But a president's choices are also influenced by the Senate, which shares the power of appointment...

...But with the rise of the Warren Court (1953-1968) and the intensely liberal agenda it pursued, the conservative counterattack began...

...Certainly the GOP leadership would be able to unite a majority in opposition to an activist of the old school...

...Today, Proposition 209 is nowhere the law in Califomia...

...A two-thirds vote of both houses is necessary to propose an The American Spectator • March 1 9 9 7 61 amendment, which three-quarters of the states must then ratify...

...That would be the point, of course: in too many instances the courts have become independent of the Constitution they are charged to interpret, making new law instead...

...It was adopted by statewide referendum on November 5. The next day, the groups that had opposed the new amendment asked a (carefully chosen) federal judge to halt its enforcement...

...This is what judicial activism has come down to: courts have quit deciding real cases that by definition have real parties claiming real injuries...

...and vowing to name "constitutionalists...

...Nonetheless, it may be possible to unite constituencies upset with the courts on various grounds behind an amendment to counter the judiciary...