THE LAW: JUDGE NOT
A federal judge shuts down Cleveland's school-choice program on the day before classes begin, threatening the education of thousands of children—and then, three days later, reverses himself, as arbitrarily as before. The Arizona supreme court contrives to undermine the state's own laws by sending a minor to Kansas to get a late-term abortion. The New Jersey supreme court instructs the Boy Scouts to admit open homosexuals, and everyone else to stop regarding their conduct as immoral. School boards across the nation look to the Supreme Court in Washington to see what their teachers should say about the origins of life.
These stories all come from the newspapers of recent weeks, but it is not as though judges have been unusually active in this period. Similar stories could be plucked from almost any other period during the 1990s.
And this is said to be a decade of judicial quietude, which is testimony to how accustomed we have all grown to the notion that the courts may exercise a veto power over almost any major policy—or even set policies for schools, prisons, and other institutions. It is in this decade that the Supreme Court has implied that objective morality—in the Court's words, "a moral code that transcends human invention"—cannot be the basis of legislation (Romer v. Evans). It is in this decade that the Court has claimed to "speak before all others" for our constitutional ideals and suggested that it is better to stand by unconstitutional Court decisions than to undermine the Court's legitimacy (Casey v. Planned Parenthood). Two years ago, the Court ruled that it would allow states to ban euthanasia, but reserved the right to change its mind (Washington v. Glucksberg). Over the last three years, courts have struck down 19 state bans on partial-birth abortion on the grounds that they were vague: The judges insist that this horrifying procedure cannot be defined, even though a medical-school textbook was able to teach it. Just this year, every public school in the country was exposed to the risk of ruinous lawsuits involving "sexual harassment" by children because the Court so decreed (Davis v. Monroe County Board of Education).
It is true, however, that things could be worse. A Supreme Court appointment or two by Al Gore or Bill Bradley could undo some recent conservative advances, consolidate liberal precedents, and doom ideas such as school choice for a generation. The federal appeals courts, one level below the Supreme Court, are roughly divided between judicial liberals and judicial conservatives. But Bill Clinton's nominees are now mostly replacing Ronald Reagan's rather than Jimmy Carter's. In at least four of the twelve circuits, one more Clinton appointee would tip the balance.
Fifty Clinton nominations to the federal bench are pending in the Senate, and Democrats have been complaining that Republicans are imposing roadblocks. In fact, under Judiciary Committee chairman Orrin Hatch, Republicans have been remarkably accommodating: Clinton has appointed as many judges as Reagan, even though the Senate has been in opposition hands for longer during Clinton's tenure. (This is partly because the total number of judges has increased slightly.) The vacancy rate on the federal bench is about what it was under Reagan and Bush, and not a single Clinton nominee has been voted down.
When conservatives have complained that Hatch's committee is rubber-stamping Clinton's nominees, his main response has been that it is hard to tell which nominees would become judicial imperialists, since all of them pledge their fidelity to the law when they testify. In fact, several nominees had demonstrated clear propensities to impose their own favored policies from the bench before they were nominated. In any event, no detailed investigation of individual nominees is really necessary. The Clinton administration has publicly announced a litmus test: Clinton pledged in 1992 not to appoint anyone failing to support Roe v. Wade. Thus every Clinton nominee to the bench has said or done something to satisfy the administration that he will defy the Constitution when necessary to advance liberal goals. Why should Republican senators—or any legislator who believes in the rule of law—vote to confirm such nominees?
Roe v. Wade is the very symbol and exemplification of judicial lawlessness. One need not oppose abortion, as we do, to understand Roe as a grotesque judicial usurpation of the authority of the people to govern themselves. Indeed, there are notable supporters of abortion who nonetheless see Roe for the atrocity against democracy that it is. Lawyers who pass a Clinton litmus test have by word or deed, wink or nod, pledged themselves to lawlessness. They have no business expounding the law. None of them should be confirmed.
In 1996, when Bob Dole attacked Clinton appointee Harold Baer's ruling that fleeing from police officers was reasonable and not suspicious behavior, the president deflected the criticism by noting that Dole had voted to confirm Baer. Clinton suggested, in other words, that a vote to confirm is not just an act of deference to the president's choice but an endorsement of it. He thus in a stroke eliminated the traditional argument for senatorial deference. The Senate should block every single one of Clinton's nominees. In doing so, the senators will be withholding their consent from a new Constitution of liberals' devising—and staying true to their oaths to the old one.
