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 he front pages
over the last few days have been full of stories about President
Bush's announcement that he will no
longer
give the liberal American Bar Association a special role in evaluating
candidates for the bench. This is a perfectly reasonable decision
by the president, given the importance of judicial selection and
the demonstrated bias of the ABA, on this and other legal matters.
Nonetheless, this is an appropriate time to urge the president that
he weigh judicial candidates carefully. And I mean that quite literally.
In a word: Forget about litmus tests, and get out the bathroom scale.
To demonstrate what I am talking about, let us consider the highest
court in the land: the Supreme Court of the United States. I have
studied carefully a picture of the Court's justices, as
can the reader. This would appear to be the jurists' official
portrait. It is, after all, on the website of the Supreme Court
Historical Society, to which I was referred by the public-affairs
office of the Supreme Court itself. The photograph was, moreover,
taken by someone at the Smithsonian. If this doesn't make it official,
I don't know what does.
In all events, it will have to do, because no picture is available
on the Court's own website. Furthermore — and this is quite
disturbing in a supposedly free society — the public-affairs
officer with whom I spoke at the Court informed me in no uncertain
terms that neither the weight nor even the height of the justices
is publicly available.
The reader can see quite clearly from the portrait that the two
most portly members of the Court are also the two most faithful
to the Constitution's text: Justices Antonin Scalia and Clarence
Thomas. This should come as no surprise. Justice Scalia, after all,
is an Italian American and therefore an expert on matters gustatory.
And Justice Thomas revealed in his stormy confirmation hearings
that he enjoys his visits to McDonald's.
Conversely, who can help but be disgusted by the skeletal figures
cut by Justices Souter and Breyer — two members of the Court's
left wing? Dubya must carefully avoid the kind of mistake made by
his father when he appointed Justice Souter. Granted, this judge
came with the endorsement of the rotund White House chief of staff
John Sununu, but clearly this is not a case of it taking one to
know one, as a quick weigh-in would have established. Surely the
White House gym where the new president spends so much time is equipped
with a proper set of scales. Don't hesitate to use it, Mr. President!
Chief Justice William Rehnquist himself is clearly a big man. He
appears to have lost a few pounds, and his sideburns, since first
ascending to the Court in 1971 — and, indeed, his jurisprudence
is not quite as stridently right wing as in his salad days, please
pardon the expression. One must hope that the Chief continues to
make frequent trips to the Court's excellent cafeteria, and keeps
his walks around the building to a minimum. As one would expect,
judicial activity leads to judicial activism.
The distaff members of the Court shall, out of politeness, be considered
separately from the men. It would be unseemly and indelicate to
discuss whether, for instance, Justice Sandra Day O'Connor outweighs
Justice Souter, although intellectually the scales certainly tip
in her favor. It can be noted, however, that Justice O'Connor is
more zaftig than Justice Ruth Bader Ginsburg — and, of course,
she is more conservative as well.
We are left with Justices John Paul Stevens and Anthony Kennedy.
It is unsurprising that they should be among the more difficult
to evaluate (and those baggy robes don't make our job any easier,
do they?).
Stevens, President Ford's only appointment to the Court, has been
quirky and mercurial almost from the beginning, and has moved further
left over time. While not skinny, a careful study of the portrait
does indicate that he is perhaps the shortest of the male justices,
which would explain his now decidedly liberal bent. Whatever his
height-to-mass ratio, he is, in absolute terms, a lightweight. He
lacks substance.
Justice Kennedy has disappointed many with, in particular, his apostasy
on abortion. Yet he must still be counted a member of the Court's
conservative wing, albeit one of the less reliable (along with Justice
O'Connor). Whatever his failings, Kennedy takes the text of the
Constitution more seriously than Ginsburg, Breyer, Souter, and Stevens
— and the portrait establishes beyond a reasonable doubt that
he outweighs them, too.
President Bush should, therefore, not gamble that his nominees will
"grow in office." He should, instead, choose jurists who have already
expanded. Mr. President, look for justices like Robert Bork, the
jurist of undeniable gravitas who famously announced his desire
for an "intellectual feast." We need men, and women, who are unafraid
to tip the scales of justice.
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