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Don't forget the judges: The candidates and the constitution

By W. James Antle III
web posted October 18, 2004

Although this year's presidential race has seen the two major foreign-policy crises of our time – the war in Iraq and the ascent of global terrorism – crowd other subjects out of the public debate, many of the issues that have been election-year staples for decades remain salient. Chief among these hardy perennials is the composition of the federal courts.

On the surface, what kind of judges a president would appoint and what legal philosophies they are looking for sounds like a hopelessly wonky topic. After all, how many voters really know the difference between an originalist textualist and a critical theorist? But with so much policy pertaining to the country's most divisive social issues – abortion, gay marriage, racial preferences, religion in the public square – decided by the courts rather than in the legislature, judges are the 800-pound gorillas of American politics.

Each presidential campaign relies on the specter of a judiciary shaped by the other side to motivate their base. Judicial appointments are also frequently invoked as a final selling point to ideologues toying with the idea of withholding their support from the major party closest to their side of the political spectrum, such as conservatives disaffected with George W. Bush or liberals contemplating a vote for Ralph Nader rather than John Kerry. Don't they know, their more pragmatic brethren ask, that the Supreme Court is at stake?

Gray hairs in black robes: The elderly U.S. Supreme Court
Gray hairs in black robes: The elderly U.S. Supreme Court

This might be more than your usual bit of campaign hyperbole. Chief Justice William Rehnquist recently turned 80; the average age of the justices on the court he presides over is 70. Only one justice is younger than 65. The odds are high that the next president will be able to pick one to three new justices in four years.

For the small minority of us who care about such things, the best part of the haggling over judges is that it's the only time in the election cycle the candidates and their supporters actually talk about the Constitution. It certainly doesn't often come up in discussions of their spending and legislative agendas.

Sometimes these discussions can be more revealing than the partisans intend. Elliot Mincberg, vice president and legal director of the liberal People for the American Way, last week told Investors Business Daily: "Ours is a philosophy that firmly supports the jurisprudence that we've seen in the United States beginning with the New Deal. Frankly, a lot of folks on the other side want to bring us back to before the New Deal, to a philosophy that the federal government has very limited power and that would not protect many individual rights."

Let's ruminate on Mr. Mincberg's quote for a minute. He is concerned that the kind of strict-constructionist judges conservatives tend to favor will adhere to a philosophy of limited federal power, thus endangering individual rights. A good student of the Federalist Papers will recognize that this premise is 180 degrees away from the Founding Fathers, who placed firm limits on the federal government precisely to protect individual rights.

This legal philosophy dovetails nicely with the contemporary left's worldview that rights are privileges granted by government, often enjoyed at the expense of other people, primarily violated by the private sector. Now, let's just say that the Declaration of Independence posited a rather different source of our rights. But what's notable about this form of liberalism is that it does not seem to perceive government as much of a potential aggressor against rights, except with respect to the treatment of criminals or various racist state policies from the Jim Crow era.

Where Bush is vague on the substantive impact of the strict constructionists he'd appoint, other than to say that wouldn't strip "under God" from the Pledge of Allegiance and further imply that they won't be big boosters of same-sex marriage or abortion on demand, Kerry rattles off a list of rights his would protect. He warns that if the president is reelected, he will "turn back the clock."

Constitutional conservatives know they'll have no such luck. In a second term, Bush would appoint some judges in the mold of Antonin Scalia and Clarence Thomas; he would appoint others closer to Sandra Day O'Connor, Anthony Kennedy and maybe even David Souter if necessary to win approval from the Senate Judiciary Committee's likely chairman in the next Congress, Sen. Arlen Specter (R-PA). But in a Kerry administration, we will be lucky to get judges as conservative as Ruth Bader Ginsburg. To avoid "turning back the clock," Democrats prefer judges whose clocks are running fast.

Nevertheless, it's notable that four years of complaints against the Bush administration on questions ranging from the detention of enemy combatants to the PATRIOT Act to military tribunals don't seem to have dimmed some liberals' faith in the federal government as a rights-dispensing mechanism. One might have hoped for a rekindled awareness of the relationship between constitutionally restrained government and safeguards on individual liberties.

Listen carefully to the discussions about judges. When it comes to the Constitution and the role of government, it's when Democrats and Republicans subtly tell you what they really think.

W. James Antle III is an assistant editor of The American Conservative and a senior editor for Enter Stage Right. The views expressed above represent his alone.

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