Bush Has No Mandate to Remake the Courts: Right-Wing Appointments Won't Fly

May 14, 2001


May 14, 2001


By Mark Kozlowski

In the summer of 1999 pundits were beginning to handicap candidates for the 2000 presidential election. One such effort was made by the Wall Street Journal’s Paul Gigot. Why was it, Gigot wondered, that so many prominent members of the hard right had already pledged allegiance to George W. Bush, an adherent of suspiciously mushy “compassionate conservatism,” thereby leaving in the lurch more ideologically attractive candidates?

The answer: staunch conservatives viewed Bush as the most electable Republican whose victory offered the prospect of wrenching the federal courts in a decisively rightward direction. Gigot quoted Pat Robertson, of the Christian Broadcasting Network: “The fact is you can’t repeal Roe v. Wade without three more Supreme Court justices, and you aren’t going to name those justices without winning the White House. Anything that is an obstacle to that needs to be thought about.” Gigot noted that the Bush campaign had so “shrewdly exploited this sentiment” that “conservatives who care about the courts have nearly all climbed aboard the Bush Mercedes.”

Bush is now in the White House and, having not made a nuisance of themselves during the campaign, conservatives now want their payoff. Bush has responded with gusto. The Attorney General has traditionally played a central role in the selection of judicial nominees. Bush has tapped John Ashcroft for the post, a man who pledged in 1997 to “fight the judicial despotism that stands like a behemoth over this great land.” Bush has ended the American Bar Association’s 40-year role evaluating the qualifications of judicial nominees in response to right-wing claims that the organization is compromised by liberal bias. The ABA has been unofficially replaced by the Federalist Society, an avowedly conservative legal organization.

In addition, Senate conservatives are working to grease the skids for Bush nominees. Orrin Hatch, the chair of the Senate Judiciary Committee, and co-chair of the Federalist Society’s Board of Visitors, proposes the elimination of rules of 60 years’ standing that allow confirmation of a judicial nominee to be blocked by the opposition of a single Senator from the nominee’s home state, regardless of the Senator’s party affiliation. This was the means by which Republicans—most notably Jesse Helms—blocked a number of President Clinton’s judicial nominees.

There is no precise agreement in American politics as to the vigor with which any president should attempt to remake the courts in his ideological image. As a matter of historical fact, however, presidents who have claimed broad powers in this regard have done so after having conducted successful campaigns in which the direction of the courts was a leading issue. The paradigmatic examples are Franklin Roosevelt’s re-election in 1936, when the federal courts’ opposition to New Deal legislation was hotly debated, and the 1968 victory of Richard Nixon, who repeatedly denounced the Warren Court as excessively liberal.

There is no serious argument that Bush possesses any similar mandate. Beyond the obvious fact that he lost the popular vote, Bush undertook no sustained attack upon the federal courts during the campaign. He pledged to name “strict constructionists” to the Supreme Court, but pointedly eschewed any commitment to a crusade to overturn Roe v. Wade. Indeed, the courts were an issue in the 2000 campaign almost wholly because of Al Gore’s warnings that a GOP victory threatened Roe.

With the first wave of Bush nominees named and headed for the confirmation process, the Senate should prepare to vigorously scrutinize every one of these candidates. It owes no deference to a campaign to stock the federal courts with clones of Antonin Scalia and Clarence Thomas that has no semblance of a popular mandate.

The men who wrote the Constitution, whom conservatives purport to revere, did not give the power of naming judges to the president alone because, as one of them declared, “people will think we are leaning too much toward Monarchy.” Another stated that exclusive presidential control would be “a dangerous prerogative” because it would give the president “an influence ove the Judiciary department itself.”

Choosing the federal judiciary is the joint project of the president and the Senate because, as James Madison himself said, the latter is a body “sufficiently stable and independent” to be a proper evaluator of judicial qualifications. There is no occasion when the Senate should play this role more forcefully as when a president attempts to remodel the federal courts in accordance with ideological convictions that have not been embraced by the electorate.