The WSJ To Bush: No More Souters!

Well, I remain "0-for-many" in my efforts to get published by the MSM.

In an editorial today entitled "No More Souters," The Wall Street Journal argued that, in selecting someone to succeed Justice O'Conner, Bush should refrain from nominating anyone whose judicial philosophy is unknown.

If you want to understand why many of Mr. Bush's supporters are worried that he might nominate Attorney General Alberto Gonzales, this is the reason.

The objection isn't personal, and it isn't even about what Mr. Gonzales thinks; the concern is that virtually no one knows what he thinks. Mr. Gonzales's brief tenure on the Texas Supreme Court and his behind-closed-doors advice as chief White House counsel shed little light on what his judicial philosophy would be. And the record across recent decades is that justices who join the High Court without a clear and confident jurisprudence eventually become part of what has been a longstanding liberal majority.

The editorial drives this point home with a list of examples that would have to hearten any "liberal":

[S]even of the nine current Justices were appointed by Republican Presidents.

Earl Warren, the father of modern judicial activism, was an Eisenhower appointee. So was William Brennan, who inherited Warren's mantle as the Court's liberal giant. Harry Blackmun, the author of Roe v. Wade, was a Nixon appointee.

The most liberal member of the current court, John Paul Stevens, was a Gerald Ford selection. David Souter, a George H. W. Bush and Warren Rudman choice, told the Senate he saw himself in the tradition of the great Justice John Harlan, who revered precedent. But on the court he's arguably been more of a liberal activist than either of Bill Clinton's two justices (Ruth Bader Ginsburg and Stephen Breyer).

Anthony Kennedy, selected by Reagan after Robert Bork was defeated, was said at the time to share 80% of Mr. Bork's philosophy. But Mr. Kennedy's jurisprudence has proven to be nearly as malleable as Justice Souter's, especially on the cultural and church-state issues where the Court has become the de facto national legislature.

Even Justice Scalia appears to be a disappointment, despite having what the WSJ doubtless considers to be the apotheosis of a "a clear and confident jurisprudence." In ticking off a list of cases "[i]n which the post-Warren justices have arrogated to themselves an almost legislative authority," the editorial includes two in which Justice Scalia joined "the liberal majority:" Raich, the medical marijuana case and Kelo, the eminent domain case.

In my response to this editorial, I suggested that the really interesting question lurking behind these facts was "why?" Why is it that so many ostentibly "conservative" judges turn out to be such a disappointment to the conservatives who supported them? I offered my own views on this question (thorougly well-reasoned and insightful, of course) , but they didn't publish it. I neglected to save a copy myself, and have no desire to try to reproduce it here in its entirety, but the gist of it was as follows:

1. Becuase they have a life-time appointment and no concern about being reversed by a higher court, Supreme Court justices are uniquely free to "do the right thing;" and
2. Inevitably, even the most "conservative" Justices sooner or later realize that "doing the right thing" involves leadership (aka "activism").

The WSJ decries such leadership (activism) on the grounds that it "hijack[s] those social disputes from democratic debate, preventing the kind of legislative compromises that would allow a social and political consensus to form." To which I responded, "Nonsense."

The Supreme Court is not, can not, and should not be removed from the "democratic debate;" it is always a part of, and very frequently the initiator of, that debate. The debate continues well after the decision is rendered, and anyone who believes that the the durability of individual decisions is not affected by that debate should compare Plessy v Ferguson (separate can be equal) with Brown v Bd. Of Education (separate cannot be equal), Schecter Poultry with J&L Steel and SWANCC with Raich (see this post), and Bowers with Lawrence(see this post).

I have said it before, and no doubt will say it again: The Supreme Court plays a vital role in the Nation's political processes, in defining who we are and what are values are. And it is wishful thinking to suppose this can be changed and very bad policy to try.

Update: Well, now I am really hurt. Here is one of the comments the WSJ did publish:

Abolish the Court
R.LaBonte - Sacramento, Calif.

We don't need three political branches. The answer is to get rid of the Supreme Court. Start by reducing the number of judges to three. Rehnquist, Scalia, and Thomas. Then limit the Court's jurisdiction to one area--treaties and foreign policy. The Supreme Court is anachronistic, unnecessary, unhelpful, and contributes the national disintegration. America would be much better off without a bunch of elitist petty princesses. Get rid of the Supremes.

This is the kind of thing that gives free speech -- to say nothing of democracy -- a bad name.