NOMINATION JITTERS

By William F. Buckley Jr.

The brooding omnipresence is of course the Supreme Court. Its members are mortal, unlike some of the decisions they pass on, millstones around the neck of otherwise free people.

Sen. Daschle, on behalf of the new Senate, has advised that indeed "ideology" will figure in the Senate's exploration of the qualifications of nominees. That takes us a very long way from the days when Democratic point men inveighed against "litmus tests" during the reign of Reagan and Bush I. Daschle & Co. don't want litmus tests, but they do want ideological bona fides. They want to add to the oath of office the phrase: "...and I do hereby pledge never to inquire into the constitutionality of Roe v. Wade."

"Ideology" is a tricky word, and is not used by careful word men except when they mean one particular thing. The reason for it is that the word suggests the superordination of creed over reason. It contends against philosophy, so that the ideologue can find himself defending slavery because slavery survived the founding of the republic. Philosophy prevailed over ideology when Lincoln reasoned his way to emancipation, even though the constitutionality of his proclamation was challengeable.

What has got very much lost in the two generations in which the Supreme Court has taken on the role of moral tribunal is any sense of intellectual affront, let alone enduring resistance. The reason for it is that most intellectuals applaud the decisions arrived at by the Court, and are therefore willing to dismiss analytical scruple.

A foremost constitutional scholar at Princeton was able, in 1956, to challenge Brown v. Board of Education (eliminating school segregation) simply on the grounds that the Court's reasoning was defective. There are thoughtful reservations about the means used to invalidate the old Connecticut law on birth control (Griswold v. Connecticut) but again, because we oppose birth-control laws, any reasoning used to invalidate them becomes consecrated.

Sluggishness takes over, as in judicial controversies involving religion. Here is a field in which soldiers of anti-religion are very active. What surprises is indifference to the weapons they use.

The venerable Professor Walter Berns, in his new book, "Making Patriots," traces the forces that engendered the Constitution and were thought important in promoting that virtue thought necessary for successful self-government. In his quiet, scholarly way, Berns discusses the 1940s court cases that resulted in disallowing any interface between religion and public education.

Having done so, he drops the following footnote: "Everson v. Board of Education, 330 U.S. 1 (1947); McCollum v. Board of Education, 333 U.S. 203 (1948). It was in the first of these cases that Justice Wiley B. Rutledge said that the purpose of the First Amendment 'was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.'" Then just one sentence of commentary. One killer sentence: "Unless he intended deliberately to deceive, no one with any knowledge of our history could have written this."

But separation of church and state ideology is king. So is Equal Treatment. One expression of it got from Professor David Gelernter of Yale the most withering summary in recent judicial criticism.

"The Virginia Military Institute used to be male-only," Gelertner began, in his book "Drawing Life." The elite didn't like that, and set to work. A Washington Post columnist wrote that VMI existed in a 'medieval time warp, in which brotherhood is forged through sado-masochistic rituals in a foreign monastery supported by the state for its own Byzantine purposes.' A state senator from Virginia notified the world that she had 'trouble with young men who want to shave their heads and shower together.'

"The elite hated VMI, and no doubt VMI hated the elite -- another even matchup, except that, when it occurred to the elite one afternoon on the way to the water cooler that VMI's way of life ought to be wiped out (just a casual notion, inasmuch as the likes of VMI hardly matter to the elite one way or the other), it was duly wiped out. The old regime was crushed like a beer can under a tank tread and the Institute is now, needless to say, coed.

"Having put things right and fundamentally refashioned the quirky, proud old college, the elite is unlikely to think about it again for the next hundred years. This is no conspiracy; the lawyers who argued for the Justice Department, the reporters who covered the case and the Supreme Court majority that decided it all, just happened to see eye-to-eye with the intelligentsia."

It is possible that when Mr. Bush comes in with his next nomination, these tensions are going to get aired. If they do, it might sound more like an explosion than a ventilation. There is that kind of unease out there, as should be expected from a republic whose principal laws are written by unelected men and women. The question is not shaping up as it should, namely: Stop doing that. Rather, it is shaping up as: Make sure that their successors do as we wish them to do. Stand by for the first nominee.

-- Norm (al@normal.com), July 10, 2001

Italics off

-- Norm (al@normal.com), July 10, 2001.