Respond to this Article July/August 2002

Tipping the Scale

President Bush picks judges based on ideology--so why shouldn't senators reject them for it?

By Dawn Johnsen

In 1993, U.S. District Court Judge D. Brooks Smith gave a speech to the Pittsburgh chapter of the conservative Federalist Society in which he promoted a strikingly narrow interpretation of the Constitution. Smith declared that "[t]he Framers' primary, if not sole" intent in vesting in Congress the power to regulate interstate commerce through the Commerce Clause was "to permit the government to eliminate trade barriers." And he went on to suggest that this narrow original intent should guide how it is interpreted today.

While it may sound like a point of legal arcana, Smith's view, taken to its logical conclusion, would contradict more than 50 years of U.S. Supreme Court case law, including landmark decisions that upheld the 1964 Civil Rights Act and provide the basis for many modern federal human rights, environmental, and public safety laws. Perhaps not surprisingly, Smith's judicial rulings have proven just as controversial since President Ronald Reagan appointed him to the court in 1988, evoking harsh criticism for, among other things, failing to protect individual rights.

Smith's ideas may be extreme, but they are shared by a cadre of judges whom Presidents Reagan and George H.W. Bush placed on the federal bench. President George W. Bush is now trying to elevate some of these same judges from the lower district courts to the higher appellate courts. In fact, Bush has nominated Judge Smith for a seat on the U.S. Court of Appeals for the Third Circuit, whose decisions can only be reversed by the Supreme Court, currently controlled by a conservative majority.

Smith's nomination, and many others pending before the Senate, presents a centuries-old question: What role should a judicial nominee's legal philosophy and views play as the Senate fulfills its constitutional role in confirming federal judges? How troubling must a senator find a nominee's views before casting a negative vote?

To hear Republicans tell it, senators shouldn't take into account such factors as the details of one's judicial philosophy or views on particular legal issues. (If they do so, critics accuse them of "Borking.") Former Reagan and Bush administration officials Douglas Kmiec and C. Boyden Gray both testified to this effect last year before a subcommittee of the Senate Judiciary Committee. Gray put it most succinctly: "Should ideology matter? I can answer in one word: No."

Of course, ideology was precisely the reason GOP senators often gave for blocking President Bill Clinton's nominees, declaring them to be too "liberal." It is an odd sort of hypocrisy: President Bush recently renewed his pledge to continue to appoint "conservative" judges in the model of Justices Antonin Scalia and Clarence Thomas. What at least some Republicans seem to have in mind is a constitutional double standard that would allow only a Republican president to consider the views of judicial nominees--and not a Democrat-controlled Senate.

Democratic senators are looking closely at some of President Bush's most controversial nominees, with mixed results. On one hand, they united in opposing the elevation of Judge Charles W. Pickering to the Fifth Circuit. On the other hand, after close questioning and examination, Democrats on the Senate Judiciary Committee split on Judge Smith, with three voting in his favor after he largely disavowed the implications of his Federalist Society speech on the Commerce Clause.

As senators consider the role nominees' legal philosophy and views ought to play in their confirmation, they should keep one important factor in mind: the concerted strategy developed by Republicans during the Reagan administration to radically remake the federal judiciary based on conservative ideology. This is a familiar story to many people. I, for one, worked at progressive public-interest organizations during the Reagan and Bush administrations, and later in the Justice Department during the Clinton administration. But only recently, while studying some Reagan-era Department of Justice publications, did I come to appreciate the extraordinary extent to which the Reagan administration in particular devised the blueprint and laid the foundation for the federal judiciary's current activism and ideological conservatism.

Several documents prepared by the Reagan Department of Justice in 1988--the same year Judge Smith was appointed to the bench--flatly contradict the current Republican line about disregarding ideology. Largely unknown and unexamined by the public before now, these official government reports state that nominees' views on particular legal issues are in fact "critical"--and not just for the president, but also for the Senate (to view these documents, click here and here). What's more, they suggest that the use of ideology in judicial selection was a deliberate strategy in an organized Reagan administration effort to change the way the courts interpret the Constitution--a strategy pursued with stunning success.

Strict De-Constructionists

When Reagan took office in 1981, his disdain for what he saw as an "activist" federal judiciary was well known. He believed that several decades of Supreme Court rulings under Chief Justices Earl Warren and Warren Burger (as well as congressional action during those same years) had inappropriately shifted power from the states to the federal government, and expanded the welfare state and individual rights.

In his first inaugural address, he declared: "It is my intention to curb the size and influence of the federal establishment and to demand recognition of the distinction between the powers granted to the federal government and those reserved to the states or the people." His long list of specific complaints went beyond constitutional issues that clearly involved federal versus state power. At the top of his list, for example, was the Supreme Court's protection of women's right to choose abortion, which he claimed deprived the states of their right to outlaw the practice to protect the unborn.

Once Reagan took office, he began seeking to remake the judiciary--and through it, constitutional doctrine--by appointing judges who held the views and values he desired. That Reagan, and later George H.W. Bush, considered judicial philosophy in making judicial appointments is no surprise. They openly proclaimed their commitment to appointing "strict constructionists" who would "interpret, not make" law.

What was not widely known at the time is that the Reagan administration devised and employed extremely detailed blueprints setting forth what it believed the law should look like and also how it would go about changing the law to conform to its preferred constitutional vision.

For presidents to adopt independent constitutional positions is neither unprecedented nor necessarily inappropriate. Both the president and Congress can be important contributors to the development of constitutional meaning, for good and ill. Presidents can provide important voices when the court gets it wrong. Famous examples include Thomas Jefferson's opposition to the Sedition Act of 1798, Abraham Lincoln's opposition to the Dred Scott decision, and Franklin Delano Roosevelt's opposition to the court's invalidation of his New Deal legislation.

But the Reagan effort was astonishing in its breadth and detail. The Office of Legal Policy--the same office at the Department of Justice that advised Reagan on judicial selection--issued a series of official reports that developed independent administration positions on numerous legal issues. Those views were often at odds with then-prevailing Supreme Court interpretations. Rarely has any president sought to advance such comprehensive constitutional views in direct conflict with those of the Supreme Court.

One 1988 report, "Guidelines on Constitutional Litigation," instructed Justice lawyers on the administration's view of the proper interpretation of the Constitution on a wide range of issues--abortion, affirmative action, and congressional power, to name just a few. The guiding principle behind all constitutional arguments by government attorneys was henceforth to be the idea of "original intent"--the legal view, favored by more extreme conservatives, that would drastically narrow many individual rights and governmental powers granted under the Constitution. A section entitled "Guidelines on Respecting the Limited Power Granted to the Federal Government," for example, directed litigators to urge the courts to adopt new limits on Congress' power to enact legislation.

The Supreme Court adopted a broad view of Congress' power to regulate interstate commerce in 1937, after a disastrous period in which the court had invalidated numerous progressive federal laws designed to protect the health, safety, and economic well-being of workers and regulate the failing economy. Since that time, Congress has relied on what generally is referred to as its "commerce power" as the basis for many diverse statutes, from civil rights and environmental protection laws, to federal drug laws and other criminal statutes.

Most famous among these cases is the court's 1942 opinion in Wickard v. Filburn, which upheld Congress' power to limit a farmer's production of wheat for home consumption because of the possible cumulative effect of all home consumption by farmers on the interstate market for wheat. Two decades later the court unanimously upheld the 1964 Civil Rights Act's ban on racial discrimination by certain private establishments, including restaurants and hotels, as a valid exercise of Congress' commerce power. There was sufficient effect on interstate commerce, the court held, because some of the food sold in restaurants such as Ollie's Barbecue in Birmingham came from out of state, and also because African Americans, when denied access to hotels and restaurants, would consequently spend less money on interstate travel.

The Reagan "Guidelines" acknowledged that a longstanding body of precedent supported an exceedingly broad view of Congress' power under the Commerce Clause, and then set out to change that. The report instructed government lawyers to urge the courts to adopt a much narrower view of Congress' commerce power and suggested possible avenues for limitation (also the subject of Judge Smith's Federalist Society speech).

Even more critical of the court is a section of the "Guidelines" on Congress' power under the post-Civil War 13th, 14th, and 15th Amendments, each of which vests in Congress the authority to enforce its provisions by "appropriate legislation." The Reagan Justice Department declared the court was wrong in suggesting, in a series of opinions beginning in 1966, that Congress had a role in helping to define the substantive guarantees and applicability of these amendments. The targeted cases included challenges to Congress' authority to enact voting-rights legislation that prohibited states' use of literacy tests as a way of limiting who was eligible to vote.

These guidelines were essentially a list of targets. Each section ended with a critique of what the Reagan administration labeled "inconsistent" Supreme Court decisions. Wickard v. Filburn and other congressional power decisions made the list, as did landmark decisions of the court on other issues, including:

* Miranda v. Arizona, which required the police to advise suspects in custody of their rights before beginning interrogations.

* Sherbert v. Verner, which protected the free exercise of religion from governmental burdens such as conditioning unemployment benefits on a requirement that the recipients work on their Sabbath.

* decisions protecting rights of liberty and privacy in choices regarding childbearing, including not only abortion and Roe v. Wade, but also the right to use contraception (Griswold v. Connecticut) and the right to be free from government-mandated sterilization (Skinner v. Oklahoma).

The Reagan plan didn't merely identify these "inconsistent" Supreme Court precedents. It sought to change them. The Justice Department's guidelines directed government litigators to urge the federal courts to adopt the administration's legal views. At the same time, Reagan focused on transforming those courts to make them more sympathetic through the appointment of judges who shared his views and who, through their rulings, would transform the meaning of the Constitution.

Closet Ideologue

To that end, the Justice Department issued a second report in 1988, "The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation," a 199-page guide to selecting and evaluating prospective judges, especially Supreme Court justices. This report explicitly affirmed the Reagan administration's position that judicial selection was a "critical" factor in what the Constitution (and the nation) would look like a dozen years hence: "There are few factors that are more critical to determining the course of the Nation, and yet are more often overlooked, than the values and philosophies of the men and women who populate the third co-equal branch of the national government--the federal judiciary."

Each of the 15 chapters analyzed a major constitutional controversy, "the resolution of which is likely to be sharply influenced by the judicial philosophies of the individual justices who sit on the court." Among the diverse issues covered: the right to privacy, the rights of criminal defendants, the Takings Clause and property rights, rights of sexual orientation, separation of powers issues, the scope of the Equal Protection Clause as applied to racial minorities and aliens, and First Amendment issues of religion and freedom of association.

Though some Republicans today claim that judicial nominees' views are not fair game for senators, the Reagan administration unmistakably believed otherwise: "[I]t is hoped that this report will allow Members of Congress of both parties, pursuant to their constitutional responsibilities, to assess judicial nominees in the most thorough and informed manner possible."

What's more, this approach continued through the first Bush administration. In 1990, then-White House counsel C. Boyden Gray was asked how the judicial selection process for President Bush would compare to that of President Reagan. Gray responded, "It's structured a little differently, but the result is very much the same." According to The New York Times, Gray said the aim "is to shift the courts in a more conservative direction."

The "Federalism Five"

Just as remarkable as the existence of these detailed goals and strategies is how effective they have proved, with the promise of more to come. Among the greatest "successes" to date are recent Supreme Court rulings that impose substantial limits on a cornerstone of our democracy and freedom: Congress' power to enact legislation.

Beginning in 1995, a bare five-justice majority broke with more than 50 years of Supreme Court precedent that upheld broad congressional power. In United States v. Lopez, the court struck down the Gun-Free School Zones Act, which relied on the Commerce Clause to make bringing a gun into a school zone a federal offense. The court ruled that Congress had exceeded its authority and was infringing on the states' rights to police themselves.

Over the vigorous dissents of four justices, the "federalism five" have begun what some prominent scholars describe as a "constitutional revolution" that would radically shift power away from Congress and to the states. This new direction threatens to sharply constrain the ability of elected representatives in Congress to enact federal legislation that most Americans take for granted: protecting basic human rights, the environment, and other issues that need to be dealt with on a national scale. Contrary to the usual conservative demands for a strict interpretation of the Constitution, the Rehnquist court has created new legal doctrines out of whole cloth and narrowed many of Congress' most important powers under the Commerce Clause, and also under the 13th, 14th, and 15th Amendments, which, among other things, abolished slavery, guard against state-sponsored race and sex discrimination, and guarantee the right to vote regardless of race.

Among the diverse federal laws the court has invalidated just in the last seven years are significant portions of:

* the Americans with Disabilities Act and the Age Discrimination in Employment Act, which would have allowed employees in state universities as well as government to recover damages when their state employers unlawfully discriminated on the basis of disability or age.

* the Violence Against Women Act, which would have allowed the victims of rape and other gender-motivated violence to sue their attackers.

* the Brady Act, which directed local law enforcement officers to do background checks for possible criminal convictions of prospective gun purchasers.

The Rehnquist court, commonly recognized as ideologically conservative, is, ironically enough, also the most judicially activist in generations. No other Supreme Court has invalidated more federal statutes since the early 20th century, when the court infamously struck down such measures as laws barring child labor. And, of course, the Rehnquist court also is noteworthy--to many, notorious--for its direct role in resolving a presidential election in the way likely to lead to a strengthening of the court's new direction.

Appointments to the lower federal courts also are tremendously important to the protection of legal rights and the development of constitutional law. The Supreme Court reviews just a small fraction of the decisions of the federal courts of appeal--only about 100 cases a year--so typically the circuit court provides the final word. Even when the Supreme Court does take a case, it is often to resolve conflicting decisions among the circuit courts, with a lower federal court providing the constitutional theory that the Supreme Court ultimately adopts.

Take, for example, the court's recent decisions narrowing Congress' power to enact laws. Fourth Circuit Judge J. Michael Luttig (appointed by President George H. W. Bush) authored the lengthy opinion--later affirmed by the Supreme Court--that invalidated a significant provision of the Violence Against Women Act. Seeking later to build on that narrow interpretation of the Commerce Clause, Judge Luttig dissented in a case in which he would have drastically diminished the ability of the federal government to protect endangered species.

On other issues, the lower courts sometimes have gone further in rejecting settled precedent than even the Rehnquist court has been prepared to follow. Another Fourth Circuit judge, Karen J. Williams (also appointed by the first President Bush), authored an opinion setting the stage for an overruling of Miranda (a decision, you'll recall, targeted by the Reagan Justice Department). But only two justices--George W. Bush judicial exemplars Scalia and Thomas--ultimately voted to affirm that opinion.

Appointments with Destiny

It is not yet clear how far the Supreme Court will go with this radical restructuring of the constitutional allocation of powers and rights. The court's decisions to date call into doubt Congress' ability to protect many individual rights and national interests, from anti-discrimination laws to the environment.

What is clear is the source of this change. The Rehnquist court's new direction tracks many of the same changes in constitutional law advocated in the 1988 reports of the Reagan Justice Department. And of the five justices in the Rehnquist majority, Presidents Reagan and Bush appointed four and elevated the fifth to chief justice. A generation ago, the Reagan administration devised a plan to revolutionize constitutional doctrine. The Reagan revolution is fast becoming the Rehnquist revolution.

This revolution is a work in progress. On some issues, the Reagan vision has not been fully realized--at least, not yet. Most notable is the goal of convincing the Supreme Court to overrule Roe v. Wade. The court just two years ago invalidated a restrictive state abortion law, but only by a slim 5-to-4 margin.

That balance could soon tip. George W. Bush clearly is seeking to continue the rollback that has been gathering force since Reagan entered office, a phenomenon that today seems too little understood. Some senators, Democrats as well as moderate Republicans, seem to be struggling over the extent to which they should consider the judicial philosophy and views of Bush's nominees. But Republicans have had no such qualms. The Reagan-era documents confirm a longstanding, carefully crafted plan to use judicial appointments to radically reinterpret the Constitution and remake the country. The suggestion today that the Senate should not carefully review nominees' specific legal views represents the next stage in their efforts to transform the federal judiciary.

The Constitution makes no distinction between the considerations that the president and senators may take into account in exercising their roles in the appointment process. Senators must heed the lessons of our recent past. Those who do not share President Bush's constitutional views or support his efforts to fill the federal courts with like-minded judges should exercise their constitutional authority to provide balance and moderation in our federal judiciary.

Dawn Johnsen is an associate professor of law at Indiana University School of Law in Bloomington.


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