Everyone has commented on how unprecedented is the current Democratic filibuster campaign against President Bushs appellate court nominees, Miguel Estrada and Priscilla Owenwell-qualified judges even according to the liberal American Bar Association but anathema to Democrats because of their opposition to liberal judicial activism. What hasnt sufficiently been noticed is that the filibusters rest on a new jurisprudential theorycall it Schumerism, after the New York senator who is its most strident proponent. Extremist and utterly contrary to the spirit of the Constitution, Schumerism promises to wreak incalculable damage to our political fabric as the battle for control of the nations courts widens.
For two years, Schumer has tirelessly waged a campaign to change the criteria by which the Senate ratifies presidential judicial picks. For much of American history, the guideposts the Senate has relied on to confirm judges are those Alexander Hamilton laid down in The Federalist: integrity, intelligence and temperament, and faithfulness to the rule of lawterms on which Estrada and Owen pass with high marks. But instead of sticking with Hamiltonian standards, Schumer says, senators must make their Number One concern a judges ideologyby which he means the judges private political opinions, as well as the kind of political results his decisions have led to in past cases and will potentially lead to in the future. Further, judges whose legal and personal views on such hot-button political issues as affirmative action and abortion are outside the mainstream should be disqualified from sitting on the federal bench, regardless of their competence or integrity or respect for the law. As for how to find the mainstream in this new scheme, thats easy: Schumerism peremptorily defines conservative views as extremistnot even worthy of rebuttal, and certainly deserving no place in the judiciary.
Schumerism is now the regnant jurisprudential philosophy among Senate Democrats, who seek to make it the benchmark for confirming any future Bush Supreme Court nominations. Indeed, one of the front-runners for the Democratic presidential nomination, Massachusetts senator John Kerry, has already said hell filibuster any Supreme Court nominees who would not uphold abortion rights or laws protecting workers and the environment.
The naked partisanship of Schumerism goes beyond anything the Democrats and their allies have asserted in earlier judicial battles. In defeating the Supreme Court nomination of Robert Bork and in trying to defeat the nomination of Clarence Thomas, the Democrats still felt constrained by Senate tradition to argue against confirmation primarily by raising questions of temperament and integrity. No longer. The Dems justify the filibuster of Priscilla Owen, for example, chiefly because on the Texas Supreme Court she argued in one case that parents should play a role in the decision-making process for their minor daughters quest for an abortion. Most Americans support parental notification laws for abortion, but never mindany judge willing to contemplate any limitation on abortion at any time is a right-wing extremist. Miguel Estrada is filibusterable because he is reputed to be staunchly conservative in his political viewsas if many Americans didnt share similar values.
Whats ultimately at stake in the struggle over Bushs two contested judicial picks is far more important than the fate of these particular nominations. The very nature of the courts is up for grabs. For five decades, liberals have happily watched an activist judiciary twist the words of the Constitution to make them produce progressive policy outcomeseverything from affirmative action to partial-birth abortionthat the Left never could have won from voters. Liberals have defended the judiciarys expansive policymaking by saying that it simply grew out of a Living Constitutiona document whose majestic principles, interpreted by wise judges (meaning judges who shared a progressive worldview), could adapt to the new challenges and needs of every era.
Conservatives have long lamented this trend toward legislating from the bench, and they want the courts restored to some semblance of what the Framers clearly intended them to beneutral referees, applying the law rather than creating it. The conservative jurisprudence of originalism, favored by Bushs judicial appointees, accordingly directs judges to stick to the Constitutions actual words and structure, as the Framers understood them, and to read statutes to mean what they say. Originalists believe that judges can and must be impartial interpreters of the law, and that legal texts have a limited range of meaning, which can be rightly or wrongly glossed. Justice Thomas, a leading proponent of this jurisprudence, writes: If we are to be a nation of laws and not of men, judges must . . . defend constitutional principles from attempts by different groups, parties, or the people as a whole, to overwhelm them in the name of expediency. The prospect of an originalist bench bent on depoliticizing the law in this fashion is an enormous threat to the Left, since it would deprive liberals of their extra-democratic edge and could even sweep away some court-mandated liberal policy gains as unconstitutional, especially since the Supreme Courts recent Lawrence v. Texas decision set a pattern by overturning one of the courts earlier decisions without compunction.
Panicked by the possibility of a Bushified judiciary, the Schumerian Democrats have trained their fire on originalism. Sounding strikingly like the cynical legal realists of the 1940s, the Dems are arguing that all approaches to law are at bottom a matter of power politics. The originalists might claim to be faithful to legal texts and precedent and to remove politics from jurisprudence, but thats either a fib or a delusionjudicial interpretation is unavoidably ideological, even if the ideology is that judges should merely judge rather than legislate.
What Bushs judges, like all judges, are really up to, Schumerism charges, is construing the law so that it produces their favored policies. And since what is at stake in the nations highest courts is so momentousabortion, affirmative action, free speech, property rights, voucher programsand since judging is just a form of politics, Schumerism licenses the use of any means necessary, short of breaking the law, to retain a liberal judiciary: calling Bush nominees extremist right-wing ideologues out to attack working families (as the DNC brays); denouncing in Orwellian style judges who seek merely to apply the law as right-wing judicial activists; smearing nominees as closet racists or homophobes (in circuit court pick William Pryors case, simply because he and his wife postponed a vacation visit with their two young daughters to Disney World after discovering that their visit overlapped with the theme parks bawdy annual Gay Day); trying to create by filibuster a new super-majority requirement for judicial confirmations, shredding Senate norms and constitutional precedent in the process; andgoing even furtherproposing, as Schumer himself has done, to take away the presidents constitutional power to select judges and turn it over to state committees, equally divided between Democrats and Republicans, making impossible the appointment of a judge unacceptable to Democrats.
The elite media has signed on to Schumerism, too. A typical example: a recent New York Times Magazine cover story on the Fourth Circuit appeals court, one of the most intellectually muscular courts in the nation. Most of the Fourth Circuits judges are committed to originalism. But the articles author, Deborah Sontag, made no effort to understand how the courts majority reached its decisions. Clearly, in her view, a court whose majority allowed a minute of silence in Virginia schools, ended court-ordered busing in Charlotte, and upheld a state parental notification law for minors seeking abortions was just using the law to promote its preferred right-wing policy options. Even when confronted by the fact that rising judicial star J. Michael Luttig had written several Fourth Circuit decisions that took unexpectedly liberal positions, Sontag could see only a crudely political motive: He is loath to be predictable and eager to be perceived as more moderate in anticipation of a Supreme Court openingso as to push the right-wing agenda from the highest bench, she implies. But in fact, Luttig explicitly warns against the politicization of law, and like the majority he often writes for, he has won respect for the analytical rigor of his opinions.
Should Schumerism become orthodoxy among judges, the consequences for our constitutional democracy will be grim. As Justice Thomas notes, if law is just politics then there are no courts at all, only legislatures, and no Constitution or law at all, only opinion polls. And if the idea of an independent judiciary becomes just a myth masking the exercise of raw political power, George Mason law prof Nelson Lund tersely argues, we should really start asking why these politicians-in-robes should enjoy life tenureand why they should get the last word on so many important policy issues. Supreme Court Justice Antonin Scalia, blunter still, says: It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.
Thats why so much rides on the outcome of the battle over the Estrada and Owen nominations. Unfortunately, multiple Republican efforts to defeat the filibusters have fizzled. Senate Majority Leader Bill Frist and ten other senators (among them Democrat Zell Miller) have proposed a change to Senate rules on filibustering judicial nominations that would gradually lower the votes required to end a filibuster, but changing Senate rules requires at least 67 votes, making Democratic resistance impossible to get around.
The best course of action for Republicans may be to take their case to the public vigorously during the next election. Texas senator John Cornyn, who chairs the Judiciary Committees subcommittee on the Constitution, says that it may take an intervening election, bringing a bigger Republican majority, to resolve the judicial crisis. Theres good reason to think that the filibusters could hurt the Democrats chances for retaking the Senate in 2004. Have they not seen, have they not heard, notes legal writer Terry Eastland, that in 2002 Republicans won the Senate in part because Bush made the Democrats treatment of his nominees an issue?
Controversial Supreme Court decisions this June reaffirming racial preferences and justifying them not on past discrimination but on an interest in promoting diversity that the Constitution doesnt mention, and creating a new privacy right to engage in homosexual sex, based in part on a requirement to accord homosexuals dignity, nowhere mentioned in the Constitutiongive Republicans an even stronger hand to play in 2004. This was judicial lawmaking with a vengeanceand on topics on which Americans are deeply divided.
With 19 of next years 34 contested Senate seats currently held by Democrats, and the Dems confident of holding only nine of those seats, Republicans may be able to build a filibuster-proof majority, lay Schumerism to rest, and restore greater sanity to the judiciary, right up to the Supreme Court.