Now that they control the Senate, some Democrats want to treat George W. Bush's judicial nominees as badly as Republicans treated Bill Clinton's. Senate Republicans repeatedly distorted the records of Clinton's nominees to the federal appellate courts, painting judicial moderates as judicial activists and denying them hearings. While Ronald Reagan and Clinton appointed similar numbers of appellate judges, 87 percent of Reagan's nominees were confirmed, compared with only 61 percent of Clinton's. So now Senate Democrats face a choice: Should they evaluate President Bush's conservative nominees on the merits or engage in partisan payback?
It depends how you define "conservative." Traditionally, a conservative judge is one who defers to the political branches of government, insisting that political battles be fought in legislatures rather than in courts. But in the past two decades this perspective has migrated from the GOP to the Democrats. On issues from federal power to discrimination, Democrats are now the party of judicial restraint and Republicans are the party of judicial activism. Bush has nominated several of these people, and Democrats should oppose them firmly. But they should confirm true judicial conservatives, even though liberal interest groups often will not grasp the difference.
Senate Democrats have already announced that they will give special scrutiny to a handful of nominees--including Jeffrey Sutton, nominated to the federal appeals court in Cincinnati, and Michael McConnell, nominated to the federal appeals court in Denver. But the very different philosophies of these two nominees illustrate the contrasts that should guide the Democrats' behavior.
McConnell is one of the most respected conservative legal scholars in the country--which is why distinguished liberal and moderate scholars such as Laurence Tribe of Harvard, Akhil Amar of Yale, and Cass Sunstein and David Strauss of the University of Chicago support his nomination. But two liberal groups, the National Abortion and Reproductive Rights Action League and Americans United for Separation of Church and State, have aggressively opposed his nomination. The New York Times editorial page calls McConnell a "troubling nominee" and "[a] bitter opponent of abortion rights [who] also has little use for church-state separation."
Those charges make no sense. Senators shouldn't focus on the views of Bush's lower-court nominees on abortion, because the Supreme Court has left lower-court judges very little discretion on the abortion question. In the wake of the Court's expansive decision last term striking down 31 so-called partial-birth abortion laws, the only questions for lower-court judges to sort out are largely symbolic abortion restrictions such as parental notification and bills protecting live births. While these restrictions may affect the availability of abortion on the margins, they don't threaten its availability for most women. Lower-court judges have no authority to reconsider Roe v. Wade. And McConnell is particularly unlikely to try to rewrite abortion law on a lower court--while personally pro-life and a Roe critic, he is a scholar of Burke, with a deep respect for precedent.
To be sure, some senators worry about what McConnell would do were he nominated to the Supreme Court. In the welcome but unlikely event he is promoted, they could vote against him then (as liberals voted against Robert Bork, who was confirmed to the U.S. Court of Appeals for the D.C. Circuit before being defeated for the Supreme Court). Besides, even as a Supreme Court justice, McConnell probably wouldn't have an occasion to reconsider Roe: He believes that no legislature would pass a pre-viability abortion restriction today, even in his home state of Utah. And if Congress passed a law protecting abortion, McConnell, unlike many conservatives, would uphold it.
And McConnell's views on church-state separation aren't just innocuous, they're praiseworthy. More than anyone else in the country, he is responsible for persuading the Supreme Court to abandon the extreme separationism of the 1970s, which required school districts to discriminate against religion by permitting all student organizations except prayer groups to meet after class on school property. Partly because of McConnell's scholarship and advocacy, in the '90s the Court instead embraced a healthy vision of religious neutrality, holding that the state may provide equal--but not favored--treatment for religious organizations. McConnell has defended the right of religious organizations to receive public aid on an equal basis with nonreligious ones, supporting the constitutionality of vouchers and charitable choice. But, unlike religious supremacists such as Justices Antonin Scalia, William Rehnquist, and Clarence Thomas, McConnell rejects state efforts to favor religion over irreligion: He testified before Congress against a school-prayer amendment to the Constitution and insisted that graduation prayers in public schools were unconstitutional, even before the Supreme Court invalidated them by a 5-4 vote in 1992. Scalia has described McConnell as "the most prominent scholarly critic" of Scalia's own, less generous view of the First Amendment's guarantees of the free exercise of religion.
McConnell's principled conservatism is most evident in his deference toward Congress's power to define illegal discrimination. The five conservative justices have refused to defer to Congress on this score, insisting that they alone are entitled to decide what counts as illegal and impermissible in America. In defending the constitutionality of the Religious Freedom Restoration Act, which the Supreme Court struck down by a 6-3 vote in 1997, McConnell defended Congress's right to adopt a more expansive view of discrimination than the Court itself has adopted. McConnell is an authority on the history of Reconstruction, and his scholarship has demonstrated that Congress--not the Court--is the branch of government that the framers of the Fourteenth Amendment entrusted with the principal authority to define and enforce protection for civil rights.
The most recent demonstration of McConnell's ability to separate his political preferences from his constitutional judgments came after Bush v. Gore, when he was one of the few conservative scholars to criticize the 5-4 decision to stop the Florida recount. In articles in Slate.com and The Wall Street Journal, and in an essay in a forthcoming book about the decision, McConnell acknowledged what other conservatives refused to concede: If you really believe that Florida's decision to apply different counting standards to ballots in the same county potentially violated the equal protection of the laws, then the logical and legally appropriate remedy was to let the recount continue under a uniform standard, as Justices David Souter and Stephen Breyer proposed, rather than stop it in its tracks. He also wrote in opposition to the impeachment of President Clinton.
Mcconnell's principled commitment to judicial restraint is even starker when you contrast it with the activism of some of his fellow nominees. For instance, Jeffrey Sutton, Bush's nominee to the U.S. Court of Appeals for the Sixth Circuit. Sutton is the leading advocate in private practice of the federalism revolution that represents the Rehnquist Court's most distinctive legacy. In landmark cases this term and last, he successfully argued to the Supreme Court that private citizens cannot sue their state employers for violating the Americans with Disabilities Act and the Age Discrimination in Employment Act. In these cases and others, including the Violence Against Women Act case, he showed no sensitivity to the historical arguments about Congress's authority under the Fourteenth Amendment made by McConnell and others. And Sutton is now trying to expand state sovereign immunity to make further incursions on Congress's power.
Some Republicans already seem to be backing away from Sutton because of his position in the ADA case, suggesting that he is personally opposed to vigorous enforcement of the act. But this charge is unfair. The Senate should reject Sutton not because he supports discrimination against the disabled (which he doesn't) but because he has refused to show proper respect for Congress's constitutional right to define discrimination more broadly than the Supreme Court. During the past six years, the conservative majority on the Court has struck down no fewer than 28 federal laws, a high-handed usurpation of power that Congress has endured with passive acquiescence. The Sutton nomination presents an ideal opportunity for the Senate to reassert its constitutional authority.
Democratic interest groups, of course, have little interest in distinguishing between nominees like McConnell and Sutton. Their constituencies require them to oppose nominees who disagree with their parochial positions rather than look seriously at nominees' views on the separation of powers and the Court's deference to the political branches. But if Democratic senators allow themselves to be driven by interest-group politics, they will focus their opposition on the most well-known candidates--such as McConnell--and end up confirming obscure ideologues who are more likely to decide cases on the basis of partisan affiliation rather than a principled commitment to judicial restraint. As Bush v. Gore demonstrated, there are too many of these people on the courts already.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.