To Bork, or To Hope For Souterization

With the upcoming 2013 Supreme Court term around the corner, there is inevitably talk of resignations towards the end of any term. In terms of likelihood, Ruth Bader Ginsburg would have to be at the top of anyone’s list, followed by Antonin Scalia, then Stephen Breyer. Given the Kagan and Sotomayor nominations along with Obama’s lower court nominations, one can clearly see that his legacy may be in reshaping the federal judiciary from the Supreme Court on down. It is doubtful that Scalia would retire as long as there is a liberal Democrat in the White House. Kennedy relishes his role as the deal-maker and tie-breaker and likely would not retire either. Thomas, Roberts, and Alito are relatively young and will remain put for a while.

In the olden days, Supreme Court nominees were usually rubber-stamped by the Senate and sent on their way. As long as they were not caught having sex with a goat, they were approved which explains why Hugo Black, a former member of the KKK, was confirmed. Can anyone imagine a former KKK member being confirmed today? Of course, not every nomination is based on being the best legal mind at the time, and political considerations always factor into the equation. Roger Taney, the author of the infamous Dred Scott decision, was certainly a political choice. And while many point to the Warren Court as the most liberally active, the process actually started at the turn of the 20th century when constitutional “positivism” creeped into the nation’s law schools. Instead of relying on the text of the Constitution, or the intent of the statute, positivism expounded the belief that the judiciary should be used for collectively moving society “forward,” of being more “progressive.” Naturally, this theory went hand-in-hand with the Progressive movement in politics. Oliver Wendell Holmes, Benjamin Cardoza, and Felex Frankfurter- all considered legal icons today- were the biggest names to embrace this theory and put it into practice on the Supreme Court. This is when we start to hear about the Constitution being a “living document.” As “living,” it must also “evolve.”

However, these individuals and the positivist movement in general were ignorant of the fact that our Founders also believed that the Constitution was “imperfect” and would need to be changed from time to time. They even created a mechanism- called “amendments-” that the postivists seemed to forget about. The Founder’s idea was that changes were to be made when there was clear-cut national consensus to do so. Thus, slavery was abolished, women were granted the right to vote, there was direct election of Senators by the people, 18-year-olds were granted the right to vote, newly freed slaves were granted full citizenship, and a whole host of other changes were written into the Constitution. Instead, the positivists showed frustration with the pace of change and began using the courts- especially the Supreme Court- to make changes. It is around this time that we see and read less and less what our Founders thought and actually wrote and more about the “living Constitution.” And it makes intuitive sense to them: Progressivism itself draws heavily on Darwinian theory and evolution. If the Constitution is “living,” it too must “evolve.” They were merely increasing the pace of that evolution. However, when you “tinker with nature,” sometimes you alter its very being. Thus, today’s interpretation of constitutional law to liberals looks nothing like the original of the species. The result is the almost complete abolition of religon in the public sphere, the creation of rights nowhere to be found in the Constitution, and interpretations that completely subjugates states to the national government. With the latter, great strains were taken by our Founders to create a system and a delicate balance between the state and national governments that today in no way approximates their vision. Read any story on the debates regarding the Constitution, or its ratification, or any of the Federalist Papers and one is struck by the fact that they viewed the Judiciary as the “least dangerous branch” of government and that today’s interpretations are seriously at odds with their thoughtful and balanced beliefs.

With the Warren Court, liberal activism reached its zenith. Even after being replaced by Burger, the Court will still quite liberal and certainly activist, especially as concerns William O. Douglass and William Brennan. Both Warren and Brennan were appointed by a Republican- Dwight Eisenhower. If Republicans are “conservative” and were so in the 1950s, then these two choices have to be the biggest blunders ever by a Republican President. That is not to say that subsequent Republicans did not make choices that came back to haunt the cause of conservatism later. The most recent concrete example would have to be George H.W. Bush’s nomination of David Souter who became a staunch member of the Court’s liberal wing. Some may point to Roberts, given his Obamacare decision, but the jury is still out on him. One decision does not a liberal it make.

In fact, the Souter nomination was an outgrowth of the failed Robert Bork nomination. Never before was such a nomination so politically controversial for such bad reasons. The charge was led by Ted Kennedy who engaged in a ruthless campaign of character assassination and misleading and false comments that bordered on slander. The real “problem” with Robert Bork was twofold: (1) he was principled in his approach to constitutional law, and (2) he had an extensive written record as a judge and as a law professor. Ironically, these two attributes were formerly a guarantee for Supreme Court confirmation; they were not liabilities. But as liberals are wont to do in typical Orwellian fashion, these were transformed into liabilities. As a result, presidents now go out of their way to find nominees who are not overtly principled and who lack a “paper trail.” If so, they must prostrate themselves before the Senate Judiciary Committee and explain themselves or, more frequently, invoke the Ginsburg line: “I cannot answer that question as the subject may come before the Court.”

Since Bork, the only really example of “borking” a nominee was Clarence Thomas. But, it backfired. Thomas turned the tables with that infamous “lynching” comment and failed to back down and remove his name from consideration. Interestingly, one can make a very good argument that Clarence Thomas is perhaps the most principled Supreme Court Justice on today’s Court. The problem for liberals is that those principles are conservative. Thus, he continues to be scorned and denigrated because he remains quiet during oral arguments, or because he is almost a guarantee conservative vote on any case. Unlike Roberts who tends to waffle and meander at times to reach narrow decisions, Thomas approaches the Constitution from a more principled angle which is the actual text of the Constitution. To this writer, that defines conservatism.

As a result of the Bork incident- because principled and well-grounded, bright legal minds stand little chance of being nominated let alone confirmed- the stealth candidate is usually chosen. Such was the case with David Souter. In fact, he was such a stealth candidate that Bush basically did not know who or what he was nominating. There are references that he relied greatly on the advice of John Sununu and other New England Republicans to make the choice. For conservatives, Souter will go down in history as one of the most abject failures. In general, Souter’s legacy on the Court is minimal. He is simply a reminder of being careful who you nominate and not relying on one or two voices for advice when making a decision.

That being said, the GOP will be faced with an important dilemma when and if Obama is to make another nomination to replace an existing Justice. One needs to work on the assumption that he would nominate a “stealth” candidate. Sotomayor’s record as a District Court judge and as an appeals judge on the Second Circuit was minimal. There were no smoking guns to indicate some broad, over-riding political ideology. With Kagan, one can make an assumption that as Solicitor General she has to support and defend Obama’s legislation when challenged. But, she was not Solicitor General for that long when she was nominated. However, the choices were politically shrewd. First, by being women, one approached the nominations (wrongly, I assert) with kid gloves. By fearing being viewed as “anti-woman,” they were simply treated too nicely. With Sotomayor, there was the added restraint of being perceived as beating up on a Hispanic nominee. Yet, did the Democrats have any qualms about beating up on and denigrating Clarence Thomas? Whoever Obama nominates, should that opportunity arise, Republicans must stand up to that nominee for the stakes are too high. A lot would depend on control of the Senate, but even if in the minority, it is incumbent upon the GOP to fully vet and take off the velvet kid gloves when analyzing and considering Obama’s next Supreme Court nominee. It would not be surprising if Obama were to nominate a black woman. This way he can play up criticism of the nominee as the continuing alleged GOP “war on women.” It would also give him the opportunity to make yet another Chris Matthews’ tingling leg speech on race in America. He may even pull a name from the South in hopes of picking off a few Republicans from that region.

At one point, I believed that there could be compromise with liberals on judicial nominations. But, the actions and the comments by Obama and his proxies in this area now lead me to believe that compromise is not possible, especially with so important a consideration as a Supreme Court nominee. Instead, given his performance thus far, nothing short of a slash and burn, take no prisoners opposition to an Obama Supreme Court nomination would represent a total failure of the GOP. A list of dirty laundry should be available for any potential nominee and used to its fullest extent. Obama is intent on “transforming” the United States into something our Founders would never recognize, let alone condone. That is the ultimate legacy of Barack Obama and Republican complicity in that legacy, especially with respect to the “least dangerous branch of government,” would simply further that demise. The stakes are too high to hope for the Obama equivalent of a David Souter. The Bork strategy worked once and it almost worked a second time. Go with the proven strategy.