The New Republic

During his postelection press conference, President Bush made it
clear that he intends to appoint a reliable "strict constructionist"
to replace the ailing Chief Justice William H. Rehnquist if and
when he retires. According to administration officials, there are
eight candidates on Bush's short list, all of whom fit the bill.
Senate Democrats will try to distinguish between conservatives and
moderates by focusing on the candidates' views of Roe v. Wade. But
the more important distinction is between principled conservatives
(who believe in deference to legislatures through judicial
restraint) and conservative activists (who are determined to use
the courts to strike at the heart of the regulatory state). The
activists want to resurrect what they call the "Constitution in
Exile," enforcing limits on federal power, that have been dormant
since the New Deal, in part through narrow interpretation of the
interstate commerce clause (see "Supreme Mistake," November 8). By
this standard, four of Bush's candidates are troubling while the
other four could be embraced by Democrats with cautious optimism.The Conservative Activists

Samuel Alito Jr., 54. U.S. Court of Appeals for the Third Circuit.
Known as "Scalito," or little Scalia, he is considered less
blustering than the big guy, but liberals will undoubtedly balk at
his abortion record. In 1991, he dissented from a decision to
strike down Pennsylvania's spousal notification provision--a
decision the Supreme Court later upheld in Planned Parenthood v.
Casey, the decision that reaffirmed Roe v. Wade. What should be far
more troubling to Senate Democrats, however, is Alito's 1996
dissent from a decision upholding the constitutionality of a
federal law prohibiting the possession of machine guns. Applying
the logic of the Constitution in Exile for all it's worth, Alito
insisted that the private possession of machine guns was not an
economic activity, and there was no empirical evidence that private
gun possession increased violent crime in a way that substantially
affected commerce--therefore, Congress has no right to regulate it.
Alito's colleagues criticized him for requiring "Congress or the
Executive to play Show and Tell with the federal courts at the
peril of invalidation of a Congressional statute. " His lack of
deference to Congress is unsettling.

Janice Rogers Brown, 55. California Supreme Court. Of all the names
on Bush's short list, this fire-breathing libertarian seems the
most activist and the least judicious. Brown has left no doubt
about what she thinks of the post- New Deal regulatory state: She
derisively described 1937, the year the Court began to uphold the
New Deal, as "the triumph of our socialist revolution," adding that
"private property was a major casualty." She has been the only
dissenter in a series of cases on the California Supreme Court,
arguing in the most intemperate and sarcastic terms for the
invalidation of a host of regulations--from those governing age and
disability discrimination to those controlling housing assistance
for the elderly and disabled. ("Theft is theft even when the
government approves of the thievery," she wrote of public
assistance.) She has even criticized Justice Oliver Wendell Holmes's
famous ode to judicial restraint in his dissent from the
progressive-era case that invalidated maximum-hour laws, and she
has lambasted the modern Supreme Court for protecting economic
rights less vigorously than other individual liberties. She has
shown little interest in following precedents with which she
disagrees, announcing, "If our hands really are tied, it behooves
us to gnaw through the ropes." And, in a 2000 speech to the
libertarian Institute for Justice, which has strongly supported her
candidacy, she announced: "Big government is not just the opiate of
the masses, it is the drug choice for multinational corporations
and single moms, for regulated industries and rugged Midwestern
farmers and militant senior citizens." On the brighter side, like
other libertarians, she has vigorously enforced some Fourth
Amendment rights against unreasonable searches. But her
inflammatory rhetoric led Senate Democrats to filibuster her
nomination to the federal appellate court last year, and they would
be justified in doing so again.

Edith Brown Clement, 56. U.S. Court of Appeals for the Fifth
Circuit. Unanimously confirmed in 2001, Clement has written little
and therefore might be an appealing stealth candidate. But
everything about her record suggests she is an enthusiastic
supporter of the Constitution in Exile. This year, for example,
Clement joined a blistering dissent by Judge Edith Jones objecting
to the application of the Endangered Species Act to protect a rare
species of underground bug. The U.S. Fish and Wildlife Service had
denied a group of Texas developers a permit to build a shopping
mall on the bugs' habitat, and Clement and Jones objected that
protecting bugs was not a commercial activity, criticizing their
colleagues for creating "a constitutionally limitless theory of
federal protection." The rest of her majority opinions and dissents
as an appellate judge contain few clues about her judicial
temperament, though she has been willing to enforce Fourth
Amendment privacy claims in a few cases. In the absence of more
information about her, Senate Democrats should approach Clement
with caution.

Emilio Garza, 57. U.S. Court of Appeals for the Fifth Circuit. Bush
has made no secret of his desire to appoint the first Latino
justice, but, last week, he nominated White House Counsel Alberto
Gonzales as attorney general, a move some suggest is meant to shore
up his credentials with social conservatives for a future Supreme
Court nomination. Since Gonzales will help pick Rehnquist's
replacement, he may prefer to keep the Latino seat open for himself.
Garza has long been the conservative Latino justice-in-waiting on
the appellate bench, but he, too, will run into trouble over Roe.
In 1997, his court's majority struck down a Louisiana law that
allowed judges to deny abortion to a minor (and to notify her
parents), even if she was mature and the abortion was in her best
interest. Garza concurred in the opinion, but he added an
injudicious and unnecessary polemic criticizing the Supreme Court's
entire privacy jurisprudence. Garza doesn't have much of a paper
trail in federalism cases and seems like less of an enthusiastic
partisan of the Constitution in Exile than his colleague Jones or
the Washington lawyer Miguel Estrada, both of whom are also
potential Supreme Court candidates. But his lack of respect for
settled Supreme Court precedents should set off alarm bells.

The Principled Conservatives

J. Michael Luttig, 50. U.S. Court of Appeals for the Fourth Circuit.
Conservatives view Luttig as a "conservative's conservative" because
of his willingness to take federalism to its logical conclusion. In
a closely watched case, he dissented from his colleague J. Harvie
Wilkinson's decision to uphold the application of the Endangered
Species Act to red wolves. (Luttig said that protecting red wolves
isn't a commercial activity and therefore Congress has no power to
regulate it; Wilkinson objected that Luttig's narrow vision of
congressional power would "place in peril the entire federal
regulatory scheme for wildlife and natural resource conservation.")
Because of the red wolves case, liberals fear that Luttig would put
the Constitution in Exile into overdrive. But Luttig's commitment
to judicial principle is combined with a respect for judicial
precedent: "At the end of the day, other than conscience, it is
only analytical rigor, and the accountability that such renders
possible, that can restrain a judiciary that serves for life and at
the pleasure of no one," Luttig wrote in 2001. In 1998, for
example, Luttig wrote an opinion faithfully applying the Supreme
Court's reversal of a ban on partial-birth abortions, a decision
with which he personally disagreed. Luttig has also shown an
open-minded willingness to infer new constitutional rights from old
precedents: Disagreeing again with conservative colleagues, he held
that there is a constitutional right for people who have been
convicted of serious crimes to have access to DNA evidence that
might prove their innocence. As a Supreme Court justice, of course,
Luttig would be free to rewrite precedents rather than be bound by
them. But, if analytical rigor and precedent-based reasoning remain
as touchstones of his jurisprudence, he might prove to be an
independent and impressive justice.

Michael McConnell, 49. U.S. Court of Appeals for the Tenth Circuit.
McConnell is the most respected conservative legal scholar of his
generation, and liberals and moderates throughout the legal academy
would enthusiastically support his nomination. Liberal interest
groups, unfortunately, would aggressively oppose it because he is
personally pro-life and is also a vocal and effective critic of
Roe. As usual, though, a single-minded focus on Roe would be
misguided: McConnell has a deep respect for precedent. More than
anyone else in the country, McConnell is responsible for persuading
the Supreme Court to abandon the rigid church-state separationism
that prevailed during the 1970s, arguing instead that the state
should be neutral toward religion. As a result, he supports school
vouchers, but, unlike Justices Scalia, Thomas, and Rehnquist, he
argued that graduation prayers in public schools were
unconstitutional even before the Court struck them down in 1992. On
federalism, McConnell's record is especially encouraging. More than
the other candidates on Bush's short list, McConnell believes that
judges should defer to Congress's power to define illegal
discrimination. His definitive studies of the original
understanding of the Fourteenth Amendment have convinced him that
its framers intended Congress, not the Court, to define and enforce
protection of civil rights. As a result, McConnell has criticized
conservative justices for holding that Congress may not define
discrimination more expansively than the Court. In questions of
economic rights, McConnell seems similarly concerned about judicial
restraint: In a 1987 article titled "federalism: evaluating the
founders design," he strongly criticized a leader of the
Constitution in Exile movement, arguing that, whatever the initial
intention of the interstate commerce clause, the dream of
resurrecting long-forgotten limits on federal power is unrealistic:
The "vision that the Supreme Court, having been informed of the
founders' intentions now has in its power to restore the original
constitutional scheme, is fanciful, and would not necessarily be
desirable even if it were less so." For those who care about
deference to Congress, McConnell's nomination would be especially
welcome.

John Roberts, 49. U.S. Court of Appeals for the Washington, D.C.,
Circuit. Top of his class at Harvard Law School and a former law
clerk for Rehnquist, Roberts is one of the most impressive
appellate lawyers around today. Liberal groups object to the fact
that, in 1990, as a deputy solicitor general, Roberts signed a
brief in a case involving abortion-financing that called, in a
footnote, for Roe v. Wade to be overturned. But it would be absurd
to Bork him for this: Overturning Roe was the Bush administration's
position at the time, and Roberts, as an advocate, also represented
liberal positions, arguing in favor of affirmative action, against
broad protections for property rights, and on behalf of prisoners'
rights. In little more than a year on the bench, he has won the
respect of his liberal and conservative colleagues but has not had
enough cases to develop a clear record on questions involving the
Constitution in Exile. On the positive side, Roberts joined Judge
Merrick Garland's opinion allowing a former employee to sue the
Washington Metropolitan Area Transit Authority for disability
discrimination. He pointedly declined to join the unsettling
dissent of Judge David Sentelle, a partisan of the Constitution in
Exile, who argued that Congress had no power to condition the
receipt of federal transportation funds on the Metro's willingness
to waive its immunity from lawsuits. In another case, however,
Roberts joined Sentelle in questioning whether the Endangered
Species Act is constitutional under Congress's power to regulate
interstate commerce. The regulation in question prevented
developers from building on private lands in order to protect a
rare species of toad, and Roberts noted with deadpan wit that "the
hapless toad ... for reasons of its own, lives its entire life in
California," and therefore could not affect interstate commerce.
Nevertheless, Roberts appears willing to draw sensible lines: He
said that he might be willing to sustain the constitutionality of
the Endangered Species Act on other grounds. All in all, an
extremely able lawyer whose committed conservatism seems to be
leavened by a judicious temperament.

J. Harvie Wilkinson III, 60. U.S. Court of Appeals for the Fourth
Circuit. The former chief judge of the Fourth Circuit clerked for
Justice Lewis Powell, and this courtly conservative intellectual
has long demonstrated Powell's sensitivity to judicial overreach.
When he joined his colleagues in striking down part of the Violence
Against Women Act as impossible to justify under Congress's power
to regulate interstate commerce, he added a concurrence confessing
his concerns about what he candidly called "conservative judicial
activism": If the federalism revolution leads to the "wholesale
invalidation of environmental, civil rights, and business
regulation," he warned, then the new conservative judicial
activists would be just as discredited as their liberal activist
predecessors. The next year, Wilkinson showed his commitment to
judicial restraint, upholding Congress's power to apply the
Endangered Species Act to the protection of red wolves over
Luttig's dissent. Wilkinson has written several important essays
and scholarly articles trying to work out a principled conservative
jurisprudence. In the most recent, he argues that the Court can
best protect democracy by enforcing structural boundaries between
Congress and the states and among the branches of the federal
government, rather than by stringently upholding individual rights.
Wilkinson also proved in the case of Yaser Hamdi, whom Bush
designated an "enemy combatant," that he is willing to enforce
judicial oversight of executive power--the central question in the
war on terrorism. He has always insisted that the Court can bring
the nation together by taking judicial restraint seriously, and his
nomination could be a unifying gesture in a polarized time.

Democrats have to be realistic about a Bush nominee to the Supreme
Court rather than be distracted by Roe v. Wade. Their best hope
lies in a principled conservative judge as opposed to an activist
eager to undermine Congress's power in the name of the Constitution
in Exile. By this measure, Alito, Brown, Clement, or Garza may be
worth a Senate fight. Luttig, McConnell, Roberts, or Wilkinson, by
contrast, could well be distinguished appointments.

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