Farewell to the Chief

The Weekly Standard ^ | September 26, 2005 | Terry Eastland

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IN THE Federalist, James Madison observed that judges are "shoots from the executive stock." With this phrase, Madison was making a point about where, in a government of separated powers, judges come from; and of course, the answer is the executive, since the Constitution plainly sets forth that it is the president who has the authority to select judges.

True, the Senate must approve a president's nominees, or else none can have life tenure. But the constitutional structure is such that no one can become a judge unless the president chooses the person. Judges are shoots from the executive stock only, and so it is that a president can try, through his "shoots," to alter the jurisprudential direction of the courts--the Supreme Court included.

This point compels our attention as President Bush moves to fill two seats on the Court, the ones held by the late Chief Justice William Rehnquist and Associate Justice Sandra Day O'Connor. Bush hasn't had a vacancy on his lengthening watch until now, but he has consistently stated his intention to appoint to the Court (and the courts below) judicial conservatives, citing Antonin Scalia and Clarence Thomas as examples of the kind of jurists he admires. Bush isn't the only president in the modern era to make that kind of promise. Richard Nixon was the first to do so, and then came Ronald Reagan, followed by Bush's father, George H.W. Bush.

As this list of GOP presidents suggests, the Republican party has, for four decades, been the party of judicial conservatism, rhetorically at least. But of the nine justices these Republican presidents appointed--ten if you include John Paul Stevens, named by the fourth GOP president during that period, the caretaker Gerald Ford--only three can fairly be described, without substantial qualification, as judicial conservatives. They are Scalia, Thomas, and Rehnquist, the nation's 16th chief justice, who, stricken with thyroid cancer, died on September 3.

Rehnquist was one of four justices Richard Nixon appointed from 1969 to 1971. In his 1968 campaign for the presidency Nixon sharply criticized the Warren Court, especially its criminal-law decisions, and called for the appointment of "strict constructionists" who would interpret the law and not see themselves as "superlegislators with a free hand to impose their social and political viewpoints upon the American people." But among his appointees, only the redoubtable Rehnquist proved unambiguously conservative, and one--Harry Blackmun, author of the Court's opinion in Roe v. Wade--compiled a record celebrated by liberals.

Rehnquist stands out in many ways, most notably for a judicial philosophy that he brought to the Court fully developed, and adhered to with few exceptions throughout his long career, first as an associate justice and then, from 1986 to 2005, as the chief justice. Having clerked for Justice Robert Jackson, and written critically about the Supreme Court as early as 1957, Rehnquist formulated his approach to judging against the legacies of the New Deal and the Warren Court. The federal government was understood to have virtually unlimited power, with the states functioning essentially as subdivisions. Federalism, the distribution of power between the national government and the states that the Framers understood as a protection for liberty, had ceased to be a vital principle. The courts themselves were regarded as possessing authority to improve on the legislative choices of the people by divining and enforcing rights not found in the text or history of the Constitution.

Rehnquist's tenure was effectively a dissent from those understandings. He made his views known early on. In 1976, writing for a five-justice majority in National League of Cities v. Usery, Rehnquist found that a 1974 law extending provisions of the Fair Labor Standards Act to state and municipal employees interfered with state sovereignty and thus violated the Tenth Amendment, dormant since the New Deal. Three years earlier, in Roe v. Wade, when the Burger Court built on Warren Court precedents by declaring a constitutional right to abortion, a dissenting Rehnquist wrote that the majority had not followed the intent of the Constitution but engaged in "judicial legislation."

In 1976, Rehnquist wrote an article in the Texas Law Review titled "The Notion of a Living Constitution." Contending against the idea that "nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so," Rehnquist articulated the essence of his jurisprudence: That "the people are the ultimate source of authority," that they have parceled that authority out in various ways to create a structure for self-governance that also protects individual rights, and that the job of the courts is to make sure that the federal government doesn't overstep its authority, nor that any government violates rights the people have established through law.

Rehnquist's judicial conservatism was grounded in democratic self-government and placed a premium on federalism. It is one kind of judicial conservatism; there are others. Scalia describes himself as an "originalist," meaning he would defer to a text in terms of its objective meaning at the time of its enactment. Thomas is also an originalist, but takes a natural-law approach in discerning the meaning of the Constitution.

There are other differences between Scalia and Thomas, not least that of whether to adhere to original meaning when doing so would lead to rulings sharply at odds with the Court's precedents. Scalia would not always so adhere and has called himself a "faint-hearted originalist," while Thomas seems quite willing to follow his arguments where they may lead. He has maintained, for example, that interstate commerce, which Congress has authority to regulate, should be understood to extend only to transactions that actually cross state lines, a view that, were the Court to accept, would certainly clip the wings of the modern Congress.

Notwithstanding such differences among these three judicial conservatives, they held enough in common to produce agreement on most issues. For example, in Planned Parenthood v. Casey (1992), Rehnquist, Scalia, and Thomas were equally prepared to overrule Roe.

Defenders of the New Deal and Warren Courts thought that the Burger Court, being stocked with four shoots from the Nixon executive, might pose a serious threat to its precedents. But the Burger Court gave us, as the subtitle of one book put it, The Counter-Revolution That Wasn't. Rehnquist didn't have enough allies to effect the counterrevolution. With the Reagan and then the Bush I presidency, he was given allies--but not as many as it first appeared, and not enough to effect substantial change in key areas.

Rehnquist saw his own federalism opinion in National League of Cities repudiated nine years later in the Garcia case, and the Court's more recent efforts to revive federalism--for example, the series of commerce-clause decisions that Rehnquist inaugurated with his opinion for the Court in a 1995 case--may have foundered. Meanwhile, the other three Republican-appointed justices--Sandra Day O'Connor, Anthony Kennedy, and David Souter--wrote the joint opinion in Casey declining to overrule Roe v. Wade.

Reagan appointees O'Connor and Kennedy have disappointed everyone hoping they would be judicial conservatives on the order of Rehnquist or Scalia or Thomas. The same is true of Souter, George H.W. Bush's first appointee (Thomas was second). On the other hand, it bears noting that Reagan appointee Kennedy is on the Court only because Democrats, who controlled the Senate at the time, successfully massed against Robert Bork. Had Bork been confirmed, the story of the long-running Republican effort to alter the Court's jurisprudence would have been significantly different. No one doubts that Roe, for example, would have been overruled.

So here is George W. Bush, with an opportunity to move the Court to the judicial right. If the experience of the past 40 years teaches that it is possible to pick jurists who turn out to be judicial conservatives, it also teaches that other, less agreeable, factors can influence the selection process. In 1981 Reagan considered a person's sex--he wanted to appoint the first female justice--when he picked O'Connor, who joined Rehnquist in his pro-federalism efforts, but whose approach to judging often resulted in mushy decisions that offered little guidance for future litigants. According to Kenneth Starr's account in First Among Equals: The Supreme Court in American Life, had Reagan followed the Justice Department's recommendation, Bork would have been the choice, not O'Connor. (Not incidentally, Republicans controlled the Senate in 1981.)

In choosing John Roberts to succeed Rehnquist, Bush may well have selected a genuine judicial conservative. The question now is whether Bush will pick another judicial conservative to take O'Connor's place, thereby producing a vote shift and a more conservative Court. The temptation will be to seek to preempt opposition from Senate Democrats by subordinating judicial philosophy, and choosing someone on the basis of, say, diversity. Or by choosing someone who has said next to nothing about the great legal issues of the day--such as Souter, who once told a law clerk, "I never had to think about these things until I came to Washington. I never thought about them. I had no settled views."

If Bush devalues judicial philosophy in choosing O'Connor's successor, the project of modern Republican presidents to redirect the Court will stay roughly where it is now, with no important advances. What ought to embolden the president is a number--55. That's the number of Republicans in the Senate, and it should be enough to prevail if Senate Democrats decide to wage a confirmation battle.

 

Terry Eastland is publisher of The Weekly Standard.

[michigander]

Source

The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

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See also:

Federalist No. 66

It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

[michigander]

Well done! ;-)