POLITICS MARCH 18, 1996
On January 29, in the Lehrman Auditorium at the Heritage Foundation, Pat Buchanan delivered a lecture called "Ending Judicial Dictatorship." The published version of the speech contains no footnotes, and Buchanan never indicated at the time that the ideas were not his own. In fact, the speech was written by William J. Quirk, a law professor at the University of South Carolina and co-author of Judicial Dictatorship (Transaction, 1995). It's a cut-and-paste job in which Quirk reproduced entire paragraphs from his book, and Buchanan cheerfully repeated them. Buchanan's attacks on Justice Ruth Bader Ginsburg; his lament that the Court protects "criminals, atheists, homosexuals, flag-burners, illegal aliens"; his neo-Jeffersonian denunciation of judicial review: all appear verbatim in Quirk's book. "I did the first draft and then Pat worked on it," Quirk confessed to me, "and as you can tell the speech is completely faithful to the book."
"Buchanan's" views on judicial review typify the charlatanism of the candidate, who has boasted repeatedly that his thoughts and words are his own. "I have no pollsters, no consultants, no speech-writers," Buchanan crowed to The Baltimore Sun on February 19. "I write my own speeches and ads." But even more revealing is the tortuous confusion of the views that Buchanan is appropriating. Buchanan's speech, even more than Quirk's book, is a grab bag of mutually inconsistent conservative attacks on the judiciary that reveals Buchanan to be not a partisan of judicial restraint, or even of majority rule, but instead of a narrow set of right-wing policies that he is determined to enact by any means necessary.
The incoherence of Buchanan's jurisprudence is a useful window onto the incoherence of his politics. Because the Buchananite movement is a minority movement, and the social and economic conservatism of Buchanan supporters is not shared by the majority of American citizens, Buchanan can't decide which instantiation of the people is the most strategic vessel for his pseudo-populism: Congress, the state legislatures, the president, or the people themselves, in local or national referendum.
Like a gnarled oak thick with rings, the Quirk-Buchanan speech contains concentric layers of judicial-bashing from different periods in American history. Buchanan begins in the time warp of the Nixon era, attacking the "liberal activist" Supreme Court for thwarting the majority by creating minority rights out of thin air. Since the 1960s, he says, "the Court has been in the vanguard of an intellectual elite that believes that the prevailing social order of middle-class America is deeply flawed, unjust [... and] irrational...." Never mind that, since the 1980s, the conservative majority has been firmly in control, and today it is liberals like Justice Ginsburg who are partisans of judicial restraint, and who think the Court should uphold affirmative action programs and voting rights laws passed by the democratically elected Congress. Buchanan's notion of an eternal battle between "the Court" and "the middle class" is a relic from the 1970s, a favorite pair of worn-out slippers, and one can understand Buchanan's reluctance to abandon it.
Abruptly shifting gears, Buchanan lurches from the Nixon era to the Progressive era. To "rein in an out-of-control Court," he suggests, "[w]e could do what Theodore Roosevelt recommended in his 1912 presidential campaign--have the nation decide at the next election whether to uphold or reject any Court decision creating a new `right' or overturning a state or federal law." Buchanan also endorses Roosevelt's suggestion that federal judges could be made subject to voter recall and removal. This strain of nationalist populism, unexpected on Buchanan's tongue, is based on Quirk's interest in the progressive-era debates between Roosevelt, Learned Hand and Herbert Croly about how best to overturn the laissez-faire decisions of the conservative justices, who struck down minimum-wage and maximum-hour laws after the turn of the century.
But the notion of majority rule by national referendum is hard to reconcile with Buchanan's paeans elsewhere in the speech to the importance of deciding constitutional questions locally. "Traditionally, in America, the middle-class family controlled most of the things central to its welfare," Buchanan intones. "They decided them at the state and local level--education, crime, spending and taxation, public health and welfare, including the issue of abortion."
Finally, Buchanan, closely following Quirk, applauds Jefferson's attack on the federalist judiciary, and his insistence that the executive had a "co-equal" right with the Supreme Court and Congress to make its own judgment about the constitutionality of legislation. There's no doubt that the darker elements in Jefferson's constitutional legacy appeal to Buchanan's authoritarian instincts. ("That's what a strong president did," Buchanan says admiringly of President Jefferson's insistence that the president had the power to appeal directly to the people, over the objections of Congress and the Court, to vindicate arguably unconstitutional executive acts.) But the earlier Jefferson, the author of the Declaration and the Bill for Establishing Religious Freedom, is an odd model for Pat Buchanan; and the centerpiece of Jefferson's constitutional vision, his revolutionary insistence that the Constitution derives "its obligation from the will of the existing majority," and should be remade every generation, is hard to reconcile with Buchanan's Reaganite boilerplate about the binding force of original intent.
If Buchanan's speech represented nothing more than the half-baked posturing of a pundit-politician, it would be easy to dismiss out of hand. But the speech is more interesting than that because it reveals an intellectual dilemma at the heart of the newly populist GOP: Which incarnation of the people shall be sovereign? At times, Buchanan suggests that Congress should be considered the representative of the people's will: "Congress could use its power, which is in the Constitution, to restrict the ... jurisdiction of the Supreme Court." But this can't be right for a self-styled defender of states' rights. Imagine that the Court had upheld, rather than struck down, state-imposed term limits, as Buchanan says it should have done. Congress, under Buchanan's scheme, might respond by stripping the Court of its jurisdiction to hear cases concerning the constitutionality of term limits. And Buchanan knows, ultimately, that his views on abortion and protectionism are unlikely to prevail in Congress. "Congress also, naturally, protects the Court because the Court is the source of most of its powers," says Buchanan in the most jumbled sentence of his speech.
The truth is that the most plausible protector of a rump movement like Buchananism is the arm of government that protects all political minorities: the judicial branch. Perhaps this is why, in the middle of his speech about judicial dictatorship, Buchanan abandons the pretense of judicial abstinence and excoriates the Supreme Court for failing to construe the antitrust laws broadly enough to protect the Zenith Corporation in a failed price-fixing suit against Japanese TV manufacturers in the 1980s. "The Court, when it could have made a difference, allowed the Japanese to drive the U.S. companies out of business," snarls Buchanan, siding with Justice Brennan rather than Justice Rehnquist. After he has lost his battle to seize control of the political branches, Buchanan knows that only judges can save him in the end.