President-elect George W. Bush: An investment in freedom

By Thomas L. Jipping
web posted November 13, 2000

President-elect George W. Bush has promised to appoint judges who will "interpret the law, not make it." This is the kind of judge, restrained by the law instead of its master, necessary to preserve the people's right to govern themselves and define the culture. If he can overcome four main obstacles and succeed in appointing such judges, he will leave America better than he found it.

The first obstacle is simply the vast number of activist judges already out there. After 373 activist Clinton appointments (the Republican Senate majority defeated just one in six years), more than 52 per cent of full-time federal judges are Democratic appointees. Nearly every one is the kind of activist who believes the law is whatever he says it is. But the philosophical balance is actually worse than the partisan tally because Republican presidents have appointed many activists as well. On the Supreme Court, for example, at least two Republican appointees can be found in each of the Court's three voting blocs, from the most activist to the most restrained.

Among the many lower court judges reviewing partial-birth abortion bans, 100 per cent of the Democratic appointees predictably struck them down but a full 50 per cent of Republican appointees did so as well. Other examples abound. With a solid 95 per cent of Democrats and at least one-third of Republicans of the activist stripe, these politically-driven judges outnumber their restrained brethren by 2-to-1.

The second obstacle is that opportunities to replace activists with restrained judges may be relatively limited. Most retiring judges now are Reagan appointees, many the very kind of restrained judges Bush says he wants to appoint. Even if every Bush appointee were a restrained judge, perhaps only one-third of them would replace an activist and make a net improvement in the judiciary's overall philosophical balance.

The third obstacle is raw political patronage. Presidents often choose appointees from among candidates recommended by Senators and, after eight years in the Clinton-Gore wilderness, Republicans are pulling out their lists and checking them twice. They all have friends, relatives, fundraisers, and law partners who want to be federal judges. But choosing judicial nominees based on who they know rather than on what they believe will only make the situation worse.

The fourth obstacle is the temptation to exalt form over substance. This thing called "diversity," the politically correct gimmick-du-jour, can be very dangerous. If done for its own sake, emphasizing diversity can easily become nothing but racial discrimination, all the more pernicious because the discriminators claim the nobility of good intentions.

Sandra Day O'Connor is sworn in a Supreme Court Justice by Chief Justice Warren Burger on September 25, 1981
Sandra Day O'Connor is sworn in a Supreme Court Justice by Chief Justice Warren Burger on September 25, 1981

Exalting form over substance in judicial selection, however, costs the country dearly. President Reagan's desire to appoint the first woman to the Supreme Court resulted in choosing someone who has rendered shockingly activist decisions. Justice Sandra Day O'Connor engineered the re-write of the First Amendment to ban not just a narrow "establishment" of religion but a broad "endorsement" of religion as well. She forged new abortion rules, replacing the made-up system created in Roe v. Wade with a new made-up system that allows judges to regulate abortion in the name of a Constitution silent on the subject.

Artificially creating "diversity" for its own sake may make some feel better, but it undermines everyone's freedom. On the other hand, ensuring that the same fundamental principles are implemented by judges of various backgrounds emphasizes the enduring importance of those principles.

As Bob Dole once said, a president's most profound legacy is the judges he appoints. If George W. Bush is elected, the kind of judge he says he will appoint will be a profoundly good legacy for America. Building that legacy will require discipline, a focus on the fundamental priority of judicial restraint, and a strategy for overcoming these four obstacles. But in the end, it will be an incredible investment in freedom.

Thomas L. Jipping, J.D., is Director of the Free Congress Foundation's Center for Law & Democracy.

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