Bench Marked

by Jeffrey Rosen | May 27, 1996

"He talks a great game, and right now 55 percent of the people view him as a moderate. We need to change that. That's why we're talking about his liberal judges." --Bob Dole, The Wall Street Journal, May 3, 1996.

Judicial bashing, by and large, is a wholesome tradition in American democracy. Jefferson's attacks on the "sappers and miners" of the Federalist judiciary helped to chasten a rabidly partisan Justice Samuel Chase. FDR's saber-rattling hastened the "switch-in-time" that saved the New Deal. And thirty years of Republican broadsides against the liberal judicial activism of the Warren Court precipitated an intellectual shift among the Democrats that led to the appointments of Ruth Bader Ginsburg and Stephen Breyer, voices of liberal judicial restraint.

Now comes the crepuscular Senator Dole, who plans to make judge-bashing a centerpiece of his wilting presidential campaign. But, unlike Nixon, Reagan and Bush, Dole has embraced a rhetorical and substantive vision of the judiciary that is comically incoherent. Although he mouths the usual platitudes about judicial restraint, his brief against the Clinton judges amounts to a rambling complaint that they are upholding acts of Congress that Dole himself supported. Clinton's response has been to berate and renounce his own judges. Instead, he should relish the chance to paint Dole as a helpless slave to judicial activism, a man so ashamed of his legislative legacy that he is calling on the courts to dismantle it.

"If President Clinton has four more years and appoints just one more justice to the Supreme Court," Dole admonished on April 19, "[w]e could lock in liberal judicial activism for the next generation, and the social landscape could be dramatically changed: more federal intrusion into the lives of average Americans; more centralized power in Washington; less freedom of religious expression; more rights for criminals; and more arrogant disregard of the rights of law-abiding citizens." Dole promised to appoint "somebody who's read the Constitution, understands what it means, knows what the Tenth Amendment's all about, and is not trying to be a judicial activist."

Each of these phrases is a non sequitur. After all, Dole himself, not the Supreme Court, is responsible for "more federal intrusion in the lives of average Americans." The most hotly contested questions before the Rehnquist Court concern the constitutionality of federal laws that Dole, at the time, enthusiastically supported: federally mandated set-asides for minority businesses, the Voting Rights Amendments of 1982, the expansion of federal criminal jurisdiction and federal civil rights protections for the disabled, women and minorities. Faced with challenges to each of these laws, the Clinton appointees, Ginsburg and Breyer, have voted consistently for judicial restraint, arguing that judges should defer to the policy preferences of elected representatives such as Senator Dole. This principled commitment to deference leads Breyer and Ginsburg to conservative as well as liberal results: both voted last term, for example, to approve random drug testing of student athletes.

Dole has also been singling out President Clinton's nominees to the federal appellate courts for "attempting to stamp their own brand of stealth liberalism on America." But here, too, the charge of liberal judicial activism is often spurious. In several of the disputed opinions, the Clinton judges concluded that Congress had not meant to federalize the underlying crime in the first place. Consider the Republican attack on Judge Diana Gribbon Motz, a Clinton appointee to the Fourth Circuit. The disputed case involved a striking member of the United Mine Workers union who shot a security guard crossing a picket line. Instead of being charged with murder or manslaughter, he was convicted of violating a federal statute that makes it illegal to damage commercial vehicles used in interstate commerce. Judge Motz argued plausibly in dissent that because the security vans operated entirely in West Virginia the federal conviction should not stand. "In light of the recent efforts towards `de-federalization,'" Motz wrote, "it is surprising that the majority chooses to convert what would otherwise be a classic state-law offense, with strong local overtones, into a federal crime." And other decisions in Dole's "judicial hall of shame" involve efforts by Clinton judges to construe federal criminal statutes narrowly, in the spirit of the Tenth Amendment. ("Dole judges," Dole intoned, "will know the Tenth Amendment by heart.")

Not all the Republican criticisms can be answered so easily: as the recent firestorm over Judge Harold Baer shows, some Clinton nominees are more likely to side with criminal defendants than are their Republican colleagues. But instead of defending its nominees on substantive grounds the Clinton administration has cravenly sided with its critics. First Clinton suggested, through his press secretary, that Judge Baer should resign if he did not reverse himself. And, in a disingenuous response published in The Wall Street Journal at the end of March, "let's play `whose judges are tougher on crime?'," the new White House Counsel, Jack Quinn, insisted that "[f]or every decision like Judge Baer's, I could point to another Reagan or Bush judge's decision" that is equally soft on crime.

By failing to draw a sharp line between the constitutional judgments of his judicial nominees and the policy judgments of his administration, Clinton is falling into a devious Republican trap. Over the next few months, according to a Republican strategist, Dole and other Senate Republicans plan to link the decisions of Clinton's judges with the substantive policies of his administration. For example, the Republicans will argue, the Clinton administration tolerates child pornography and then appoints judges to further its pro-pornography agenda. Senator Dole gave us a tantalizing preview of this strategy on April 23, when he lambasted Judges David Tatel and Judith Rogers of the U.S. Court of Appeals for the D.C. Circuit, who had properly questioned the constitutionality of the FCC's sweeping regulations prohibiting the transmission of "indecency" on radio and television. "So while President Clinton touts the V-chip and holds high-profile White House conferences with television executives," Dole sneered, "his judges are attempting to strip the very protections that he supposedly supports."

Dole's attempt to elide the distinction between law and policy, to suggest that there is no difference between, say, a congressman's vote to support affirmative action and a judge's vote to uphold affirmative action, is an especially poignant expression of intellectual defeat. For the past thirty years, the Republicans have convincingly posed as the party of judicial principle, insisting that there was a meaningful difference between the role of a judge and the role of a legislator. Now the tables are turned, and the conservatives have calculated that the only way to enact their relatively unpopular political agenda--ending abortion, affirmative action and federal regulations--is through the courts rather than the political branches. So the party of judicial restraint has become the party of judicial activism. If President Clinton can bring himself to say so, judicial conservatives should support him as well.

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