Wall St. Journal

BATTLE FOR THE BENCH

Blue-Slip Blackmail
Democrats declare war over the judiciary. Bush must not surrender.

BY ROBERT H. BORK
Thursday, May 10, 2001 12:01 a.m.

The campaign continues. Having lost the presidency, the House of Representatives and (very narrowly) the Senate, the Democrats are waging a campaign to solidify control over the third branch of government, the federal judiciary, which they fear is slipping from their grasp.

The left's immediate tactic is to insist that a nominee be disqualified if even one senator from his home state returns a "blue slip," the equivalent of a blackball. The Constitution requires "the Advice and Consent of the Senate." Liberals want to make that the advice and consent of any single Democratic senator.

In order to coerce the administration, they are holding hostage nominees for important Justice Department posts, leaving Attorney General John Ashcroft to run the department without the indispensable assistance of a deputy, solicitor general or any assistant attorneys general. Republicans must not surrender. If they do, the president will be forced to pick nonentities and the next Democratic president will complete the liberal politicization of the courts.

For over half a century the federal courts, with few exceptions, have busily enacted the liberal cultural and political agenda in defiance of any plausible reading of the Constitution. Now the Senate Democrats on the Judiciary Committee--and their allies in the academic world and activist groups--are waging a particularly ugly war to prevent the Bush administration from returning the judiciary to its legitimate role in our national life.

Mr. Bush yesterday announced his first 11 selections for new appellate and trial-court judges, and the all-too-familiar liberal assault, powered by misrepresentations and scare tactics, began. Judges who interpret the Constitution as its principles were understood by those who wrote and ratified it are branded "far right-wing ideologues." If they are, by a parity of reasoning, so too were Madison, Washington, Adams, Hamilton and the rest of the Founders. Not bad company. Liberal judges advancing agendas unconnected to the actual Constitution are rechristened "moderates" and "centrists."

Forty-two of the Senate's 50 Democrats recently attended a private retreat where they heard a panel, composed of Harvard law professor Laurence Tribe, University of Chicago law professor Cass Sunstein, and Marcia Greenberger, co-director of the National Women's Law Center, urge them to oppose Mr. Bush's judicial nominees on the basis that they are conservative. The New York Times reported that one attendee said of the panel: "They said it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite." Political correctness is apparently the new standard to which nominees are to be held.

The panelists themselves are well to the left on constitutional matters. Mr. Sunstein, for example, published in the New York Times the preposterous argument that President Clinton "chose centrists like Justices Ruth Bader Ginsburg and Stephen Breyer" for the Supreme Court. Centrists they may be on mundane legal topics but when it comes to major cultural issues, they are two of a four-justice adamantine liberal bloc.

Mr. Sunstein went on to say: "We are now in the midst of a remarkable period of right-wing judicial activism. The Supreme Court has moderates but no liberals." It is all the more remarkable, then, that these "moderates" managed to find a statute banning the barbaric practice of partial-birth abortions unconstitutional, struck down every trace of religion in public life, created special voting rights for homosexuals, protected pornography, forbade the Virginia Military Institute from remaining all-male, supported affirmative-action quotas, and reached other results impossible to justify by the Constitution reasonably interpreted.

Justice Antonin Scalia had the matter exactly right (in dissent, of course): "What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court . . .? Day by day, case by case, it is busy designing a Constitution for a country I do not recognize." It is, however, the country the Senate Democrats appear to want.

Because some of the nominees are members of the Federalist Society, that organization has come in for slander, and has been described as a "tightly organized right-wing lawyers' group." As a member, I can testify that the Federalist Society is barely organized at all. Unlike the American Bar Association, it does not vet judges and takes no position on public affairs. Its main activity is organizing debates, at which liberals are well-represented. Yet the head of People for the American Way, itself on the outer fringes of the left, describes the society as a "bastion of far-right legal thought."

The truth is that there is no far-right legal thought in the U.S. There are liberal activists and originalists, the latter not even remotely resembling the conservative activists on the court in the first third of the 20th century. But the theory of the left is that if you shout "far right" and "extremists" long enough, some people will believe it.

Until now, Democrats had largely reserved their fire for Supreme Court nominees, but partisan battles for liberal judges have now spread to the lower courts. Since only a tiny fraction of all cases get to the Supreme Court, the coming nominations and confirmation battles are all-important. Mr. Bush had best resign himself to the fact that bipartisanship never was any part of the Democrats' strategy. The mood in Washington is more venomously partisan than any time in living memory. That is entirely due to the congressional Democrats, who are, as is their custom, waging ideological warfare.

The truth is that Mr. Bush's nominees, at least most of those we know of so far, are a legal dream team--not because they have an ideology, but because of their high skills as lawyers and their devotion to the rule of law rather than the rule of judges.

George W. Bush as president has been far more resolute in a sensible conservatism than he seemed in the early days of his primary campaign. Then he sounded at times a bit like Bill Clinton; now he sounds more than a bit like Ronald Reagan. This is just as well, because he faces a fight that will test his resolve and deeply affect not only the health of democratic self-government but the day-to-day lives of Americans for years to come. If they value self-government, if they prefer to set their own moral standards rather than accept those an arrogant elite would force upon them, Americans will support the president's judicial nominations. If he wants to win, Mr. Bush will have to make that case to the country.

Mr. Bork, a former federal appeals judge, is a senior fellow at the American Enterprise Institute and a professor at the Ave Maria School of Law in Ann Arbor, Mich.

-- Anonymous, May 10, 2001