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.

I am not always as obtuse as I sound, Bigun. :) And as a lawyer, I always have verbal exit strategies. If those don't work, well about once bi-annually, I just admit that I was well, wrong.

An informative, reasonable article written by a liberal. That's a pretty rare thing, although I guess The New Republic has more of a track record for such things than other liberal publications.

I wonder how the writer did his research? In particular, I wonder whether it involved any reading of the judge's decisions. If so, I wonder if he saw some stuff that made some sense to him. I'm wearing out the phrase "I wonder" here, but I also wonder if some moderate liberals might not have been a little rattled by the recent SCOTUS ruling on imminent domain (sp?) -- and might have a tad more appreciation for the strict interpretation practiced by conservative judges.

How many states do you imagine would have "signed on" to the union knowing that they were to become "mere administrative regions"?

Most, it being a question of the big states having more authority than they should and the little states being squeezed out but going along because they have to eventually. Would the borders of the admin regions be adjusted to even out population numbers? That would end up the same as squeezing out the little states, too. Opinion was split at the Constitutional convention just as it is here. The FedGov ended up with either too much power or not enough power depending on the state in question, and we're still right there after all this history.

BTW, I can think of a situation where the people of a city PAY folks to drive 225 MPH on their streets. The drivers put up barriers, and charge people to watch. The city makes enough money at it that the streets they use are in magnificent shape.

It's called the Long Beach Grand Prix.

As I said, the author's focus was on the commerce clause, with a swipe at Garza for venting over Roe as suggesting maybe larger loose cannon concerns (not persuasive since only Roe drove him over the top).

Most, it being a question of the big states having more authority than they should and the little states being squeezed out but going along because they have to eventually.

I beg to disagree. That is precisely why the states were given (regardless of size) the exact same representation in the federal government. (Since ratification of the 17th amendment, the states now have NO representation in the federal government.)

The Fed Gov ended up with either too much power or not enough power depending on the state in question, and we're still right there after all this history.

The fed gov has far more power than any of the founders ever intended, most of it unconstitutionally usurped, but that has nothing whatever to do with the physical sizes of the states.

That is precisely why the states were given (regardless of size) the exact same representation in the federal government

Only in the Second House and in the Electoral College. Some big names were willing to consider eliminating the states altogether, although the majority were not interested in that.

Some big names were willing to consider eliminating the states altogether, although the majority were not interested in that.

Some "big names" would have heartily endorsed the naming of a king! I thanks God for the sensible majority!

You're right, he's focusing on the commerce clause. This seems like an odd focus since it's going to be abortion that drives the liberals' position on the nominees. I wonder if Rosen plans on doing another article focused on the judges' paper trails regarding abortion.

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

Wait a minute, you're missing a step in logic. If the feds stop regulating speed limits, who's to say that the states won't start? In fact, haven't they already started?

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

Not at all. One state legalizing pot should help the states that don't, because all the druggies will move to the state where it's legal.

The point is that there is a federal interest in what states do, 24/7. Think about gay marriage. There is a federal interest in that too. It simply won't be sustainable to have legalized gay marriage in some states, and not others. You just watch.

The Democrats will try to prevent the appointment of any of these people. Sometimes I think the Dems are trying to refine the practice of stalling confirmation, with the ultimate objective of preventing GWB from making ANY appointments to the Court. If they can run out the clock in 3 and a half years, that's what they'll do.
Whomever the President announces as his first selection, the headlines are sure to call it a "major blunder," and it'll go from there to a protracted battle. Poor Justice O'Connor will have to stay on, as she stated she would until her successor is confirmed. Big bad W will be blamed for preventing her from caring for her ailing husband. The Chief Justice will retire in the meantime and the Mud Sling Media will call it a national crisis brought about by the stubborn, divisive George W. Bush.
Oh, and Jimmy Carter will put in his two cents before it's over, and so will the Toon. And those members of the super-elite True Presidents Club, John Eff Kerry and Al Gore.
Looks to be a bumpy hayride, kiddies. You must be thirty-six dukakises tall to board this ride...

It simply won't be sustainable to have legalized gay marriage in some states, and not others.

That ultimately depends on what SCOTUS rules. If it rules (correctly) that states do not have to recognize same-sex "marriage" from other states, then it would be sustainable. As sustainable as having that policy in one country but not in another.

Bush has made no secret of his desire to appoint the first Latino justice

How is this not grounds for a discrimination suit? How is this different that the U/Michegan case? Come to think of it, didn't Alberto defend quotas in that case?

You have it completely backwards. The states created the federal government. The states can tell the Federal government to stick it up its ass. The commerce clause was never intended to change that.

Unless, of course, you are a "conservative" FDR worshipper.

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