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October 20, 2006

Order in the Court

In his 1968 monograph A Constitutional Faith, often controversial Supreme Court Justice Hugo Black called the Constitution “my legal bible; its plan of our government is my plan and its destiny my destiny.” Sadly, too many of his fellow justices incline to interpret this “legal bible” in their own image, rather than allowing the plain language of the document to speak for itself. On a prior occasion, this column identified this problem as one of constitutional eisegesis.

If for this reason alone –- putting all legitimate complaints temporarily aside – November’s congressional elections really do matter. Just as The Patriot has twice argued for the election of President George W. Bush based on the imperative of bringing constitutional constructionists to federal benches, and especially the Supreme Court, so too should this solitary issue be foremost in voters’ minds as they head to the polls in two weeks’ time.

President Bush’s two appointments to the Supreme Court, John Roberts and Samuel Alito, replacing the venerable William Rehnquist and the retiring Sandra Day O'Connor, made clear his intention to appoint solid constructionists – those who will remain loyal to the letter of the Constitution.

These two appointments have already created a marked change on the Court. The “swing-vote” position held for so long by O'Connor has been passed to Justice Anthony Kennedy, moving the Court subtly, if not definitively, to the right. Yet Kennedy will continue to join the Court’s four activist justices (Stevens, Souter, Ginsburg and Breyer) from time to time, though (presumably) not as often as O'Connor did. For instance, in this Court term alone, Justice Kennedy will tip the scales in important, precedent-creating cases concerning abortion and racial preferences.

It’s entirely possible that President Bush may have the opportunity to name a third, and maybe even a fourth, justice to the Supreme Court in his two remaining years in office. There are two reasons for this possibility, and their names are Stevens and Ginsburg.

Justice John Paul Stevens, born in 1920 and appointed to the Court by President Ford in 1975, is the oldest of the justices. Stevens is a veritable monument to the difficulty confronting a Republican president who seeks confirmation of a constructionist justice by a Democrat-controlled Senate. Stevens has been, without question, one of the Court’s most liberal members. However, as the nominee of a Republican president, it is possible that he will follow precedent (or the more binding dictates of age) and choose to retire during this Republican administration, rather than await the outcome of an unpredictable presidential election in 2008 or 2012.

Justice Ruth Ginsburg presents another serious prospect for turning the direction of the Court. Born in 1933, Ginsburg is younger than Justice Stevens, but she suffers from poorer health. She was already 60 when President Clinton appointed her in 1993, and she has, by way of her decisions, faithfully applied her champion’s contemptuous disregard for the Constitution. Ginsburg’s departure under a Republican administration could mean an earth-shaking alteration in the makeup and direction of the Court.

However, if Democrats take control of the already closely divided upper chamber (currently composed of 55 Republicans, 44 Democrats and one independent), a Supreme Court appointment of the same caliber as Roberts or Alito would prove all but impossible. Alito’s confirmation passed only by a vote of only 58-42, with only four Democrats crossing the aisle to support the nomination. If Democrats gain an edge in the Senate, or even just manage to bring it closer to a 50-50 split, all future nominations, including those to lesser federal courts, will doubtless face the bitter and hopeless fate experienced by nominees of Republican presidents beholden to a Democrat Senate.

Consider Ronald Reagan’s Supreme Court appointments: Sandra Day O'Connor (1981), Antonin Scalia (1986) and Anthony Kennedy (1988). In each case, the degree to which Democrats controlled the Senate correlates with the degree to which President Reagan’s nominee was a compromise appointee. Though O'Connor, nominated to fulfill Reagan’s promise to appoint the first woman Supreme Court Justice, turned out to be more leftward than her proponents believed at the time, the pattern holds.

O'Connor’s nomination passed 99-0 in a Senate with a seven-seat Republican majority (53-46, and one independent), before her conservative credentials came into question. Scalia, a brilliant and rock-ribbed constructionist, was confirmed 98-0 with a similar GOP majority. Kennedy, however, was Reagan’s “consensus appointment,” and the direct consequence of a 10-seat Democrat majority in the 100th Congress (55-45). Only one of these three appointments, Scalia, has proved to be a reliable constructionist. O'Connor and Kennedy, on the other hand, became ever more beguiled by the false notion of a “living Constitution,” going so far as to seek out international consensus in the interpretation of U.S. law. Indeed, these two have succeeded one another as the Court’s swing voters.

George H. W. Bush’s 1990 nomination of David Souter under a Democratic Senate (55-45) evokes even greater heartache. Like O'Connor, Souter initially played the part of the conservative justice, voting with Scalia 85 percent of the time in his first year on the Court. Later, when Casey v. Planned Parenthood offered the opportunity to overturn the Roe decision in 1992, Souter and Kennedy wavered, eventually joining O'Connor in that troika’s joint opinion upholding Roe. Similarly, the first President Bush’s nomination of a true constructionist, Clarence Thomas, reveals the kind of bloody confirmation process that awaits a future nominee if Democrats regain the Senate. (Anita Hill, call your office.)

With the exception of their commitment to President Bush’s national-security and tax-relief efforts, congressional Republicans have done little to commend themselves for re-election. Yet when we think of the issues destined to appear before the courts now and in years to come – counter-terrorism laws, abortion, school choice, affirmative action, personal property, business regulation, environment regulation and on the list goes – it may be shortsighted to throw the bums out just yet.

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