The Lichfield Group

This article appeared in the February 2005 issue of Washington Lawyer Magazine.

President George W. Bush should pack the United States Supreme Court with philosophical clones of Justices Antonin Scalia and Clarence Thomas and defeated nominee Judge Robert H. Bork as seemingly inescapable vacancies arise in his second term. Senate Republicans should vote the Senate filibuster rule as applied to thwart a floor vote for judicial nominees unconstitutional and unenforceable. Both measures are necessary to vindicate the Constitution according to its original meaning and to overcome an airbrush artist approach to interpretation embraced by a majority of sitting Justices. Neither gambit would impair either judicial independence, the separation of powers, or appointment traditions. Furthermore, President Bush would betray his popular mandate of last November if he neglects to nominate strong philosophical conservatives to the Supreme Court, such as Chief Judge Jay Harvey Wilkinson of the United States Court of Appeals for the Fourth Circuit or Judge Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit.

The Founding Fathers coveted an independent judiciary crowned with judicial review to check the excesses of the legislature or executive. But they did not intend to insulate the judiciary from politics. Supreme Court Justices were not to be appointed from within, like a self-sustaining board of directors. Instead, they were to be nominated by an indirectly elected President and confirmed by an indirectly elected Senate with a simple majority threshold. The Founding Fathers were acutely alert to the political dimension of constitutional interpretation, and acted accordingly in Supreme Court appointments. The nominations of President George Washington speak volumes.

He was no constitutional ingenue. Washington had presided over the constitutional convention of 1787. He commanded universal reverence and respect both for political sagacity and spotless integrity. Even among such intellectual giants as Madison, Hamilton, and Jefferson, Washington stood like a mighty oak.

President Washington made 14 Supreme Court nominations. Of these, 12 were confirmed, and two refused to serve after confirmation. As Henry J. Abraham recounts in Justices, Presidents, and Senators, the decisive criteria for Washington was support and advocacy of the principles of the Constitution. Anti-federalists need not apply. Professor Abraham elaborates: “Perhaps more than many of his contemporaries [Washington] recognized the potential strength and influence of the judicial branch, keenly sensing the role it would be called on to play in spelling out constitutional basics and penumbras.” (pp.53-54).

Washington was prescient. Nine-tenths of constitutional interpretation pivots on a Justice’s philosophy of government and one-tenth on law enshrined in Blackstone’s Commentaries and sister legal gospel scribbled by academics or lawyers. Further, major constitutional decisions carry enormous policy implications for the nation and the allocation of political power. For example, the division of authority between the federal government and the States has been demarcated by Supreme Court interpretations of the Commerce Clause, the Eleventh Amendment, and section 5 of the Fourteenth Amendment. The High Court has similarly struck the balance between Congress and the President in upholding the independent counsel statute, in voiding the legislative veto and line-item veto, and in sustaining President Jimmy Carter’s unilateral revocation of the Taiwan Defense Treaty. And the fortunes of the Republican and Democrat parties have climbed or plunged with Supreme Court decrees mandating equal populations among legislative districts and de facto electoral quotas for racial minorities under section 2 of the Voting Rights Act.

With regard to economic and social policies, the rulings of the togaed Justices are characteristically politically explosive. Race relations have been dramatically influenced by Supreme Court edicts ending separate-but-equal, upholding mandatory busing for desegregation, supporting racial preferences in employment, government contracts, education, and inventively interpreting civil rights statutes. The High Court’s abortion decrees since Roe v. Wade (1973) are tantamount to an abortion rights code for the nation. Its decision finding no constitutional fault with a school voucher program generally elated Christian conservatives. But they were equally deflated by the Lawrence v. Texas pronouncement of a constitutional right to homosexual sodomy.

The Founding Fathers would not frown on President Bush’s philosophical packing of the Supreme Court in hopes of advancing a policy agenda. Neither would such packing war with political traditions. President Abraham Lincoln, for instance, sought appointees who would be “safe” on legal tender, slavery, and reconstruction, although two ultimately voted against the constitutionality of the Legal Tender Act of 1862. President William Howard Taft’s six Supreme Court appointees were vetted for political conservatism. He maligned liberals like Learned Hand, Louis Brandeis, and Benjamin Cardozo as “destroyers of the Constitution,” as reported by Taft’s authoritative biographer Alpheus Thomas Mason. President Franklin D. Roosevelt appointed eight stalwart New Dealers to the High Court who had supported his ill-starred, ill-conceived, and manipulative court-packing legislation. They toppled precedents like ten-pins in dismantling “liberty of contract” as a constitutional right and empowering Congress to regulate every nook and cranny of American life by muscular constructions of the Commerce Clause.

President Bush would mock the people’s verdict on Supreme Court Justices in last November’s balloting if he neglects to appoint Justices in the mold of Scalia, Thomas, and Bork. Bush unequivocally promised the same in his presidential campaign. In contrast, his defeated opponent, Senator John Kerry (D. Mass.), pledged to appoint Justices pre-committed to leaving undisturbed the outlandish invention of a constitutional right to an abortion in Roe; and, a homonymic interpretation of the Constitution epitomized by the same-sex marriage ruling of the Massachusetts Supreme Judicial Court in 2003, i.e., the words sound the same as when they were adopted but mean something different whenever the Justices feel a compulsion to issue a moral encyclical.

The American people thus confronted a stark choice, not an echo, in the appointment of Supreme Court Justices in decisively preferring Bush to Kerry. And Bush’s popular mandate to appoint Scalia-Thomas-Bork duplicates was reinforced by parallel voting for the United States Senate and eleven State referenda embracing the traditional conception of marriage. Republicans gained four Senate seats, climbing from 51-55. Democrats plunged to 44. And one independent, James Jeffords (Vt.) completes the Senate complement of 100. Confirmation of judges was a recurring theme in several of the senatorial campaigns because of an unprecedented 10 Democrat filibusters against 10 philosophically conservative court of appeals nominees of President Bush. A highly acclaimed Hispanic, Miguel Estrada, ultimately withdrew his name as a concession to the shortness of life. The voters tacitly rebuked the Democrat filibusters and caterwauling against conservative judges by rewarding Republicans with four new Senate seats in the next Congress.

The eleven State referenda responded to the Massachusetts Supreme Judicial Court’s ludicrous interpretation of the state constitution as requiring recognition of same-sex marriages. The pertinent text had been ratified centuries ago when same-sex marriage was thought too absurd to even contemplate. Yet a majority of the Massachusetts Justices insisted on the power to wrench language from its original meaning to fashion a pioneering constitutional right celebrating their social agenda fashionable in academic circles. The eleven referenda prohibiting judicially mandated recognition of same-sex marriage all passed with overwhelming majorities. They all constituted disavowals of the homonymic theory of constitutional interpretation deplored by the likes of Scalia, Thomas, and Bork.

Elections aim at peaceful changes in policies and public officials in accord with prevailing public sentiments every bit as much in the federal judiciary as in the legislature and the executive. The influence of elections on the third branch is less pronounced because federal judges enjoy life tenure. But the indirectness does not make the electoral influence less legitimate. President Bush would thus be guilty of bait-and-switch trickery if he reneged on his campaign promise to appoint philosophically conservative Supreme Court Justices.

That infidelity would also be dangerous for the Supreme Court itself. If the Court persistently wanders miles outside the political mainstream, then its legitimacy and popular respect will erode. It will come to be perceived as an alien force antagonistic to majority rule. That threat emerged during the 1930s. The Supreme Court was derided as “Nine Old Men” with an anachronistic “horse-and-buggy” conception of the Constitution repeatedly employed to thwart economic and social fairness. President Roosevelt closed the yawning cleavage between the High Court and prevalent orthodoxies of the day by appointing a phalanx of New Deal exponents in accord with the promise he had made to the American people.

President Bush’s detractors maintain that “moderates” in the mold of Associate Justices Sandra Day O’Connor, Antony Kennedy, or Stephen Breyer can be trusted to eschew airbrush artistry or homonymic interpretations of the Constitution. But the detractors are wrong.

In the landmark university admissions decision in Grutter v. Bollinger, Justice O’Connor invented an exception to the color-blind mandate of the Fourteenth Amendment under the bogus banner of intellectual diversity. And in the manner of a legislator, she placed a 25-year sunset on the exception by ordaining that racial harmony will then have arrived by stealing a march on time. Justice O’Connor’s abortion decisions have turned on a “penumbras and emanations” theory of a constitutional right of privacy. Her “undue burden” test for vetting abortion regulations is evocative of nonsense on stilts. For instance, according to the Justice, a prohibition on grisly and infrequently used partial birth abortion with an exception to save the life of the mother unduly burdens the right of privacy.

Justice Kennedy’s recurring flights of imagination was vividly captured in his Zen Buddhist-like opinion striking down laws against homosexual sodomy in Lawrence. The Associate Justice from California sermonized: “Freedom extends beyond spatial bounds. Liberty assumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty in both its spatial and transcendent dimension.”

After ascent to the dome of heaven, Justice Kennedy chides the architects of the Constitution as stingy with liberty and subservient to the enlightenment of later generations:

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or Fourteenth Amendment known the component of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew that times can blind us to certain truths and that later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

Like Justice Kennedy, Justice Breyer believes he has been licensed to improve on the handiwork of the Founding Fathers. Why the compulsion to tamper is not self-evident. William Gladstone observed, “I have always regarded the Constitution as the most remarkable work known to me in modern times to have been produced by the human intellect, at a single stroke (so to speak), in its application to political affairs.” But intellectual humility has never entered the Harvard Law School curriculum.

In a series of lectures last November, Justice Breyer conjured up an “active liberty” theory of constitutional interpretation inspired by a few insipid lines from a French philosopher. Purged of plumage and pomposity, the “active liberty” canon of interpretation is an echo of the discredited Democrat welfare state agenda masquerading as constitutional dogma.

In sum, the “moderates” celebrated by Bush’s critics are in reality engines of new constitutional rights and powers operating with 10 as opposed to 20 cylinders. They do not subscribe to the Constitution and its twenty seven amendments in accord with the original meaning and purpose of the authors.

Senate Democrats have threatened to filibuster Bush’s Supreme Court nominees who reflect his campaign pledge and the majority sentiments of the American people and the Senate. A filibuster would require 60 votes to break and bring the nomination to the Senate floor where a simple majority would be sufficient to confirm under Article II, section 2, clause 2 of the Constitution (Appointments Clause). As with the Democrat filibusters of 10 nominees to the courts of appeal, the sole purpose would be to thwart a Senate majority favoring confirmation of Bush’s Supreme Court nominee, not to await more information or deliberation in the hope of changing floor votes. A filibuster to frustrate the Appointments Clause is constitutionally illegitimate, every bit as would be a Senate rule that refused to count the votes of black or female Senators. That does not mean that all filibusters are unconstitutional.

The Founding Fathers feared mutability and multiplication of the law. They worried over legislative aggrandizements of power. Filibusters to block pending legislation work in tandem with these concerns, like the bicameral Congress, a qualified veto in the Executive, and varied terms for the House, Senate, and Presidency.

In contrast, no worries were voiced over too many federal judges or too lax a standard for Senate confirmation. A simple majority threshold was embraced as a customary yardstick in a democracy. The Founding Fathers were alert to the option of a supermajority for confirmation. Supermajorities were required to ratify treaties, override vetoes, propose constitutional amendments, expel a member, or to convict the President of an impeachable offense. But a Supreme Court appointment was not thought sufficiently momentous in the life of the nation to demand an extraordinary political consensus. A filibuster to defeat a nominee sabotages that constitutional calculation.

The Founding Fathers, of course, desired fully informed Senate confirmation votes to defeat cronies or corrupt or incompetent appointments. But the Democrats are not threatening a filibuster for that objective in imitation of the Republican precedent concerning Associate Justice Abe Fortas’ nomination as Chief Justice. There, a filibuster was initiated in anticipation of further revelations of ethical derelictions that might plausibly persuade Democrats to balk at promoting Fortas to the pinnacle of the judiciary. Indeed, Fortas soon withdrew his nomination amidst a cascading tale of improprieties.

A filibuster for the sole purpose of preventing a Senate majority from confirming a Supreme Court nominee violates the Appointments Clause and is thus non-enforceable against the will of the Senate. Under parliamentary rules which govern the Senate, a majority is empowered to defeat a filibuster on the ground of unconstitutionality and bring a Supreme Court nomination to a floor vote. With 55 Senate Republicans, marshalling such a majority should not be difficult.

A Supreme Court adhering to the Scalia-Thomas-Bork school of interpretation would strengthen democracy and the rule of law. And it would not revolutionize the constitutional landscape by ignoring the doctrine of stare decisis.

The greatest danger to liberty is an inert people. As Justice Louis D. Brandies understood, the secret of happiness is freedom; and the secret of freedom is a brave heart. The more citizens participate in debating and fashioning the rules of society, the more they master the spirit of compromise and moderation essential for enlightened democracy. Citizen responsibility also adds legitimacy to the laws, encourages cooperation with their enforcement, and inspires patriotism and a pubic spirit. The Supreme Court thus assumes a grave responsibility when it holds that a politically controversial subject is governed by a non-negotiable constitutional rule. Chief Justice Roger B. Taney presumed to solve political divisions over slavery with his Dred Scott decision. Instead, the holdings that blacks were not United States citizens and that Congress lacked power to prohibit slavery in United States territories accelerated the Civil War.

The Supreme Court’s decision in Roe is first cousin to Dred Scott. Writing for a 7-2 majority, Justice Harry Blackmun removed the heart of the anguished and anguishing moral debate over abortion from the political agenda. A mother was held to command a virtually absolute right to an abortion. The father enjoyed no say in the matter, even if he promised to raise and nurture the child with tender loving care.

The Roe decree interdicted fair and balanced political debate. The views of pro-life and pro-choice exponents were full heard. In 1967, the Governor Ronald Reagan signed a California statute whose pro-choice provisions presaged Roe. When the case was decided in 1973, a climbing number of States had moved towards the pro-choice camp.

If the right to an abortion was clearly compelled by the Constitution, nevertheless, Justice Blackmun would have been derelict to resist out of cowardice or fear of confounding popular debate. But Roe required an hallucinogenic intellectual flight. The Associate Justice relied on penumbras and emanations of the Constitution. He relied on a right of privacy nowhere found in the text. He relied on the views of the American Medical Association, the American Hospital Association, and Hippocrates, none of which were steeped in constitutional law. In other words, the Constitution was abandoned, not embraced, in Justice Blackmun’s removal of abortion from the popular political arena.

A decent respect for government by the consent of the governed does not foreclose the Supreme Court from voiding acts of Congress, the President, or the States. The whole purpose of a written Constitution is to deny absolute power to the political branches. Tyranny by the majority is still tyranny. James Madison celebrated the Bill of Rights as a formidable tool in the hands of the judiciary to check legislative or executive abuses. But to avoid enervating popular democracy, the High Court should stick to the original meaning of the Constitution in lieu of social engineering. As Judge Learned Hand amplified:

“For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”

The original meaning theory does not eliminate interpretive difficulties. The Founding Fathers may have disagreed or their meaning may have been intentionally opaque or ambiguous. Moreover, conjecturing how they would have applied the Constitution to unforeseen developments in technology and politics centuries later is more an art than a science. But original meaning constrains the intellectual whimsies of the Justices by confining their intellectual task to searching for a range of understandings plausibly contemplated by the Constitution’s architects. That confinement is the alpha and omega of the rule of law. The only legitimate interpretive authority wielded by the Supreme Court is that intended to be conferred by the Constitution’s makers.

An original meaning Court would not presage an undiscriminating overruling of longstanding precedents such as Roe or the Commerce Clause frolic of Wickard v. Fillburn (1942). Constancy has a claim on the law. So does the protection of settled expectations. Accordingly, Chief Justice Rehnquist, writing for a 7-2 majority in Dickerson v. United States (2000), declined to overrule Miranda v. Arizona (1966) despite its intellectual outlandishness. And Associate Justice Scalia refused to reexamine the delegation of legislative power doctrine in Whitman v. American Trucking Association (2001). But constitutional decrees should not be shielded from reversal. As Justice Brandeis sermonized in Burnet v. Coronado Oil & Gas (1932)(dissenting):

“But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience, and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.”

Prudence in constitutional law, however, is every bit as indispensable to enlightened judging as intellectual soundness. Indeed, as unsurpassed luminary Sam Johnson preached, maxims of life unchastened by prudence makes knowledge useless, wit ridiculous, and genius contemptible. Thus, an original meaning Court should overrule only precedents that are both preposterous and are engendering serious social or political mischief. A counterrevolution on the installment plan is preferable to the 9th of Thermidor.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group. He was associate deputy attorney general under President Ronald Reagan.