Say It Loud

This column was written by Jack C. Doppelt.

Even before President George W. Bush announces a nominee to succeed retiring Justice Sandra Day O'Connor, the Bush administration and right-wing activists are priming the pump to co-opt public opinion so that the Senate's 45 non-Republicans either acquiesce to consenting to whomever Bush nominates or appear reckless and partisan as they shoot blanks at the candidate. The Senate is not without recourse; moreover, the public is entitled to better than a rubber advice-and-consent stamp.

Bush has signaled in general terms the type of nominee he's likely to pick. As he said in an October 2000 debate with former Vice President Al Gore, he disfavors liberal, activist judges, and he "believes in strict constructionists." Since then, he hasn't deviated from that line -- but also hasn't said much more, except to indicate how much he admires Justices Antonin Scalia and Clarence Thomas.

Interestingly, Scalia has had something to say about the usefulness of packed, underexplored phrases like "strict construction". In 2002's Republican Party of Minnesota v. White, the Court addressed the constitutionality of a provision in the Minnesota Code of Judicial Conduct that prohibited candidates for elective judicial office from announcing their views on disputed legal or political issues. The Court divided along ideological lines with Scalia writing the majority opinion that struck down the provision as both unconstitutionally limiting on speech and foolhardy in its attempt to ensure an open-minded judiciary.

In his opinion, Scalia recalled an exchange during oral argument in which Minnesota's attorney tried to defend the provision by saying that a candidate is free to assert that he's a "strict constructionist," which, he wrote, "has little meaningful content" unless it is applied to a particular issue of construction likely to come before a court. That, however, is something a candidate is not supposed to address because he or she might appear to prejudge cases. Yet, Scalia mused, "without such application to real-life issues, all candidates can claim to be 'strict constructionists' with equal (and unhelpful) plausibility."

Was Scalia arguing for more robust exchanges in which judicial candidates lay out their ideological beliefs more fully? Another part of the opinion leaves little doubt that that's exactly what he was advocating. He gave a more concrete example: the issue of same-sex marriages. He noted that, according to Minnesota's provision, a judicial candidate could not say, "I think it is constitutional for the legislature to prohibit same-sex marriage." He found that preposterous because he could say the very same thing in writings, classes, or opinions up until the very day he's a candidate -- and say it repeatedly after he becomes a judge -- yet somehow it was considered to be a mark of open-mindedness to say it's off limits during the very part of the process when the public can judge what is on his mind.

Of course, it wasn't just Scalia who felt this way. He was writing for the majority -- for Anthony Kennedy, O'Connor, William Rehnquist, and Thomas.

The less conservative wing of the Court took him on -- and on that very point. Justice Ruth Bader Ginsburg argued that there is no difference between a judicial candidate saying he thinks it's constitutional for the legislature to prohibit same-sex marriages and saying "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages." Both statements, she wrote, "contemplate a quid pro quo between candidate and voter."

Not surprising, perhaps, that Ginsburg would have such an opinion. She was confirmed 97-3 by the Senate in 1993 after hearings in which she avoided answering pointed questions on capital punishment and discrimination against gays. The Bush administration will try to get mileage out of the precedent that President Bill Clinton's appointees -- Ginsburg and Stephen Breyer the year after her -- were both confirmed overwhelmingly despite declining to discuss ideologically divisive legal issues. The administration won't say that they were confirmed in large part because Clinton vetted them first with Senator Orrin Hatch (then the ranking Republican on the Senate Judiciary Committee), who advised Clinton before the nominations to forego bringing forward Bruce Babbitt, who was perceived to be less mainstream. That is not a courtesy we are likely to see given by Bush to ranking Democrat Patrick Leahy, who has already gone on record as vowing to press nominees to explain their views on ideological issues and, if he's not satisfied with the answers, to vote against confirmation.

The powerful lessons for Democrats and for the public going into the hearings are those from 1987, when Robert Bork's nomination by President Ronald Reagan was soundly rejected by a vote of 58-42 and followed by Kennedy's unanimous confirmation. Six Republicans voted against Bork (including Arlen Specter, who is now chair of the Senate Judiciary Committee).

Specter said at the time that Bork was rejected because his views were "perhaps the most extreme of any nominee who had ever been considered by the Senate," and the hearings established the important precedent of the Senate's right to reject where there is substantial doubt that the nominee's philosophy comes within the broad continuum of U.S. constitutional jurisprudence."

Right-wing advocates recall the Bork hearings as a lynching. Bork said then that his rejection was "part of a larger war for control of our national culture." Now he's saying that Kennedy typifies a Court that is "enacting a political agenda" as he warns Bush against picking a candidate like Kennedy, and unlike him, who would "tend to drift to the left in response to elite opinion."

It is apparent that Bush does not want to end up with another Justice Kennedy. It is not clear whether he wants a justice whose views are aligned with Scalia and Thomas or with Robert Bork. That is what the hearings need to tease out. When Bork faced questions during his hearing that led him to declare with smug defiance that he could not divine a right to privacy in the Constitution, the public sensed both the extremism and the lack of judicial temperament. The Senate became emboldened.

Justice William Brennan is often quoted for his invocation in New York Times v. Sullivan that "debate on public issues should be uninhibited, robust, and wide-open." Seldom quoted is the tail end of the quote that warns that it "may well include vehement, caustic, and sometimes unpleasantly sharp attacks."

That's what lies ahead for Bush's nominee -- and a good but messy thing, too.

Jack C. Doppelt is editor and publisher of On the Docket, co-author of "Nonvoters: America's No-Shows," and professor at Northwestern University's Medill School of Journalism.

By Jack C. Doppelt
Reprinted with permission from The American Prospect, 5 Broad Street, Boston, MA 02109. All rights reserved