EVALUATING STRICT CONSTRUCTIONISTS. How to Judge

[Sandra Day O'Connor said today that she is resigning from the Supreme Court. Last November, TNR published this guide to the possible replacements.]

During his postelection press conference, President Bush made it clear that he intends to appoint a reliable "strict constructionist" to replace the ailing Chief Justice William H. Rehnquist if and when he retires. According to administration officials, there are eight candidates on Bush's short list, all of whom fit the bill. Senate Democrats will try to distinguish between conservatives and moderates by focusing on the candidates' views of Roe v. Wade. But the more important distinction is between principled conservatives (who believe in deference to legislatures through judicial restraint) and conservative activists (who are determined to use the courts to strike at the heart of the regulatory state). The activists want to resurrect what they call the "Constitution in Exile," enforcing limits on federal power, that have been dormant since the New Deal, in part through narrow interpretation of the interstate commerce clause (see "Supreme Mistake," November 8). By this standard, four of Bush's candidates are troubling while the other four could be embraced by Democrats with cautious optimism.

Samuel Alito Jr., 54. U.S. Court of Appeals for the Third Circuit. Known as "Scalito," or little Scalia, he is considered less blustering than the big guy, but liberals will undoubtedly balk at his abortion record. In 1991, he dissented from a decision to strike down Pennsylvania's spousal notification provision--a decision the Supreme Court later upheld in Planned Parenthood v. Casey, the decision that reaffirmed Roe v. Wade. What should be far more troubling to Senate Democrats, however, is Alito's 1996 dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns. Applying the logic of the Constitution in Exile for all it's worth, Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce--therefore, Congress has no right to regulate it. Alito's colleagues criticized him for requiring "Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute." His lack of deference to Congress is unsettling.

Janice Rogers Brown, 55. California Supreme Court. Of all the names on Bush's short list, this fire-breathing libertarian seems the most activist and the least judicious. Brown has left no doubt about what she thinks of the post-New Deal regulatory state: She derisively described 1937, the year the Court began to uphold the New Deal, as "the triumph of our socialist revolution," adding that "private property was a major casualty." She has been the only dissenter in a series of cases on the California Supreme Court, arguing in the most intemperate and sarcastic terms for the invalidation of a host of regulations--from those governing age and disability discrimination to those controlling housing assistance for the elderly and disabled. ("Theft is theft even when the government approves of the thievery," she wrote of public assistance.) She has even criticized Justice Oliver Wendell Holmes's famous ode to judicial restraint in his dissent from the progressive-era case that invalidated maximum-hour laws, and she has lambasted the modern Supreme Court for protecting economic rights less vigorously than other individual liberties. She has shown little interest in following precedents with which she disagrees, announcing, "If our hands really are tied, it behooves us to gnaw through the ropes." And, in a 2000 speech to the libertarian Institute for Justice, which has strongly supported her candidacy, she announced: "Big government is not just the opiate of the masses, it is the drug choice for multinational corporations and single moms, for regulated industries and rugged Midwestern farmers and militant senior citizens." On the brighter side, like other libertarians, she has vigorously enforced some Fourth Amendment rights against unreasonable searches. But her inflammatory rhetoric led Senate Democrats to filibuster her nomination to the federal appellate court last year, and they would be justified in doing so again.

Edith Brown Clement, 56. U.S. Court of Appeals for the Fifth Circuit. Unanimously confirmed in 2001, Clement has written little and therefore might be an appealing stealth candidate. But everything about her record suggests she is an enthusiastic supporter of the Constitution in Exile. This year, for example, Clement joined a blistering dissent by Judge Edith Jones objecting to the application of the Endangered Species Act to protect a rare species of underground bug. The U.S. Fish and Wildlife Service had denied a group of Texas developers a permit to build a shopping mall on the bugs' habitat, and Clement and Jones objected that protecting bugs was not a commercial activity, criticizing their colleagues for creating "a constitutionally limitless theory of federal protection." The rest of her majority opinions and dissents as an appellate judge contain few clues about her judicial temperament, though she has been willing to enforce Fourth Amendment privacy claims in a few cases. In the absence of more information about her, Senate Democrats should approach Clement with caution.

Emilio Garza, 57. U.S. Court of Appeals for the Fifth Circuit. Bush has made no secret of his desire to appoint the first Latino justice, but, last week, he nominated White House Counsel Alberto Gonzales as attorney general, a move some suggest is meant to shore up his credentials with social conservatives for a future Supreme Court nomination. Since Gonzales will help pick Rehnquist's replacement, he may prefer to keep the Latino seat open for himself. Garza has long been the conservative Latino justice-in-waiting on the appellate bench, but he, too, will run into trouble over Roe. In 1997, his court's majority struck down a Louisiana law that allowed judges to deny abortion to a minor (and to notify her parents), even if she was mature and the abortion was in her best interest. Garza concurred in the opinion, but he added an injudicious and unnecessary polemic criticizing the Supreme Court's entire privacy jurisprudence. Garza doesn't have much of a paper trail in federalism cases and seems like less of an enthusiastic partisan of the Constitution in Exile than his colleague Jones or the Washington lawyer Miguel Estrada, both of whom are also potential Supreme Court candidates. But his lack of respect for settled Supreme Court precedents should set off alarm bells.

J. Michael Luttig, 50. U.S. Court of Appeals for the Fourth Circuit. Conservatives view Luttig as a "conservative's conservative" because of his willingness to take federalism to its logical conclusion. In a closely watched case, he dissented from his colleague J. Harvie Wilkinson's decision to uphold the application of the Endangered Species Act to red wolves. (Luttig said that protecting red wolves isn't a commercial activity and therefore Congress has no power to regulate it; Wilkinson objected that Luttig's narrow vision of congressional power would "place in peril the entire federal regulatory scheme for wildlife and natural resource conservation.") Because of the red wolves case, liberals fear that Luttig would put the Constitution in Exile into overdrive. But Luttig's commitment to judicial principle is combined with a respect for judicial precedent: "At the end of the day, other than conscience, it is only analytical rigor, and the accountability that such renders possible, that can restrain a judiciary that serves for life and at the pleasure of no one," Luttig wrote in 2001. In 1998, for example, Luttig wrote an opinion faithfully applying the Supreme Court's reversal of a ban on partial-birth abortions, a decision with which he personally disagreed. Luttig has also shown an open-minded willingness to infer new constitutional rights from old precedents: Disagreeing again with conservative colleagues, he held that there is a constitutional right for people who have been convicted of serious crimes to have access to DNA evidence that might prove their innocence. As a Supreme Court justice, of course, Luttig would be free to rewrite precedents rather than be bound by them. But, if analytical rigor and precedent-based reasoning remain as touchstones of his jurisprudence, he might prove to be an independent and impressive justice.

Michael McConnell, 49. U.S. Court of Appeals for the Tenth Circuit. McConnell is the most respected conservative legal scholar of his generation, and liberals and moderates throughout the legal academy would enthusiastically support his nomination. Liberal interest groups, unfortunately, would aggressively oppose it because he is personally pro-life and is also a vocal and effective critic of Roe. As usual, though, a single-minded focus on Roe would be misguided: McConnell has a deep respect for precedent. More than anyone else in the country, McConnell is responsible for persuading the Supreme Court to abandon the rigid church-state separationism that prevailed during the 1970s, arguing instead that the state should be neutral toward religion. As a result, he supports school vouchers, but, unlike Justices Scalia, Thomas, and Rehnquist, he argued that graduation prayers in public schools were unconstitutional even before the Court struck them down in 1992. On federalism, McConnell's record is especially encouraging. More than the other candidates on Bush's short list, McConnell believes that judges should defer to Congress's power to define illegal discrimination. His definitive studies of the original understanding of the Fourteenth Amendment have convinced him that its framers intended Congress, not the Court, to define and enforce protection of civil rights. As a result, McConnell has criticized conservative justices for holding that Congress may not define discrimination more expansively than the Court. In questions of economic rights, McConnell seems similarly concerned about judicial restraint: In a 1987 article titled "federalism: evaluating the founders design," he strongly criticized a leader of the Constitution in Exile movement, arguing that, whatever the initial intention of the interstate commerce clause, the dream of resurrecting long-forgotten limits on federal power is unrealistic: The "vision that the Supreme Court, having been informed of the founders' intentions now has in its power to restore the original constitutional scheme, is fanciful, and would not necessarily be desirable even if it were less so." For those who care about deference to Congress, McConnell's nomination would be especially welcome.

John Roberts, 49. U.S. Court of Appeals for the Washington, D.C., Circuit. Top of his class at Harvard Law School and a former law clerk for Rehnquist, Roberts is one of the most impressive appellate lawyers around today. Liberal groups object to the fact that, in 1990, as a deputy solicitor general, Roberts signed a brief in a case involving abortion-financing that called, in a footnote, for Roe v. Wade to be overturned. But it would be absurd to Bork him for this: Overturning Roe was the Bush administration's position at the time, and Roberts, as an advocate, also represented liberal positions, arguing in favor of affirmative action, against broad protections for property rights, and on behalf of prisoners' rights. In little more than a year on the bench, he has won the respect of his liberal and conservative colleagues but has not had enough cases to develop a clear record on questions involving the Constitution in Exile. On the positive side, Roberts joined Judge Merrick Garland's opinion allowing a former employee to sue the Washington Metropolitan Area Transit Authority for disability discrimination. He pointedly declined to join the unsettling dissent of Judge David Sentelle, a partisan of the Constitution in Exile, who argued that Congress had no power to condition the receipt of federal transportation funds on the Metro's willingness to waive its immunity from lawsuits. In another case, however, Roberts joined Sentelle in questioning whether the Endangered Species Act is constitutional under Congress's power to regulate interstate commerce. The regulation in question prevented developers from building on private lands in order to protect a rare species of toad, and Roberts noted with deadpan wit that "the hapless toad ... for reasons of its own, lives its entire life in California," and therefore could not affect interstate commerce. Nevertheless, Roberts appears willing to draw sensible lines: He said that he might be willing to sustain the constitutionality of the Endangered Species Act on other grounds. All in all, an extremely able lawyer whose committed conservatism seems to be leavened by a judicious temperament.

J. Harvie Wilkinson III, 60. U.S. Court of Appeals for the Fourth Circuit. The former chief judge of the Fourth Circuit clerked for Justice Lewis Powell, and this courtly conservative intellectual has long demonstrated Powell's sensitivity to judicial overreach. When he joined his colleagues in striking down part of the Violence Against Women Act as impossible to justify under Congress's power to regulate interstate commerce, he added a concurrence confessing his concerns about what he candidly called "conservative judicial activism": If the federalism revolution leads to the "wholesale invalidation of environmental, civil rights, and business regulation," he warned, then the new conservative judicial activists would be just as discredited as their liberal activist predecessors. The next year, Wilkinson showed his commitment to judicial restraint, upholding Congress's power to apply the Endangered Species Act to the protection of red wolves over Luttig's dissent. Wilkinson has written several important essays and scholarly articles trying to work out a principled conservative jurisprudence. In the most recent, he argues that the Court can best protect democracy by enforcing structural boundaries between Congress and the states and among the branches of the federal government, rather than by stringently upholding individual rights. Wilkinson also proved in the case of Yaser Hamdi, whom Bush designated an "enemy combatant," that he is willing to enforce judicial oversight of executive power--the central question in the war on terrorism. He has always insisted that the Court can bring the nation together by taking judicial restraint seriously, and his nomination could be a unifying gesture in a polarized time.

Democrats have to be realistic about a Bush nominee to the Supreme Court rather than be distracted by Roe v. Wade. Their best hope lies in a principled conservative judge as opposed to an activist eager to undermine Congress's power in the name of the Constitution in Exile. By this measure, Alito, Brown, Clement, or Garza may be worth a Senate fight. Luttig, McConnell, Roberts, or Wilkinson, by contrast, could well be distinguished appointments.

Roberts and O'Connell are in the top tier of legal minds abroad in the land it appears. Roberts was first in his class at the most selective law school in the nation (and how top tier law school applicants sort themselves out is on a national basis - one goes to the "best" law school one can get into regardless of location. I hoofed it off to Michigan Law School because that was the best law school which chose to admit me). That to me suggests genius.

What the states should be, in a more perfect union, are mere administrative regions.

Have mercy!

Did you really type that?

Right to Privacy. Haven't heard that in a while. That was the theme of Vance Packard's "the Naked Society," which pointed out many of the complaints about gov't etc knowing our private business, and that back in 1965 before the Internet, before buying everything via credit and debit cards, before GPS.

What the states should be, in a more perfect union, are mere administrative regions

Yikes! You mean , sorta like, France ?! Federalism is what made the US what it is today, IMO. More local control means more democracy, not less. A more narrow reading of the commerce clause is better than what youre suggesting, one would think.

One thing you think about when evaluating reversing an errant decision (again assumning that is what the FDR did for the sake of argument), and not following stare decisis, is the practical effect of doing so, how much society has come to rely on the precedent, and how accepted it is in the society at large. In this case, the eggs are scrambled, and unscrambling them would be at once highly disruptive and unwise.

And that just keeps bringing us back to my point: if society really is as dependent on this misrepresentation of the law as you say it is, then it shouldn't be that hard for them to actually change the law "back" to what they want it to be.

But even then the problem is, you haven't really said how re-applying the commerce clause as it was originally understood would be troublesome, beyond making some vague analogies. Nothing concrete. It's not like it would cause mile-high trade barriers to go up between all the states.

No he isn't, but well, it will probably cost Garza some Senate votes. The exercise was self indulgent, because it was all unnecessary dictum. He could have contented himself in his opinion in stating that he felt bound by SCOTUS rulings, and the place to revisit those rulings was at the SCOTUS level, not by a lower court.

It will be interesting to see if the Dem senators (and Specter and the New England "RINO's") go to the wall for Roe. My sense is that the Dems see Roe as costing them votes on a net basis now, and while politicians don't mind red ink when it comes to money, they don't like it when it comes to votes. Ditto for guns.

Yep. I call them as I see them. That has always been my view (although of course wise policy is to let the states be laboratories of experimentation sometimes). You just don't read my posts enough. :)

Well I made my case. You just are not persuaded. I didn't persuade you on gay marriage either. ) And so it goes, painful as it might be when smart folks whom I respect just say no to my little opinions. :)

Well let us say the Feds can't regulate speed limits. More folks are maimed and die. The Feds cut checks associated with that. One state legalizies pot. Then we need drug guards on state borders. Maybe it makes the citizens of state state mind numbed zombies. The Feds cut more checks, the economy is damaged. And on and on it goes. No state is an island, even Hawaii, as it were.

The nation could not effectively function with a narrow reading.

There are plenty of ways to handle competing risks and opportunities regarding both negative and positive externalities, for which regulatory government was illegally constituted. You may not envision how the nation would run effectively without it, but it is quite realistic.

Just post a link to your book again. :) I kind of figuered out what its deus ex machina is that you keep hidden behind the curtain. But land use issues do not really dispose of my larger point, assuming your full employment act for environmental consultants grand unified theory worked.

Well let us say the Feds can't regulate speed limits. More folks are maimed and die.

That does not follow. The states can do that just fine, seeing as they are the ones enforcing those laws.

Strike one.

One state legalizies pot. Then we need drug guards on state borders.

Then the various states might figure out the risks versus the benefits of various regulatory or criminal schema and optimize them by competition. You got sumthin' agin Federillism?

The very assumption that the Federal government is the only competent regulatory authority is beyond laughable. You've got to do better than that.

lol!

Actually, the model in the book is in more respects applicable to traditional regulation than it is toward managing intangible environmental risks.

We use it already in manufacturing.

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